Value-Added Tax Consolidation Act 2010

AN ACT TO CONSOLIDATE ENACTMENTS RELATING TO VALUE-ADDED TAX.

[23rd November, 2010]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1 Preliminary and General

1. Short title. [VATA s. 44]

1.— This Act may be cited as the Value-Added Tax Consolidation Act 2010.

2. Interpretation — general. [VATA s. 1 (in part) and s. 3(1B) and FA 2010 s. 165(4)]

2.—(1) In this Act—

“accountable person” has the same meaning as it has in Part 2;

“accounting year” means a period of 12 months ending on 31 December, but if a taxable person customarily makes up accounts for periods of 12 months ending on another fixed date, then, for such a person, a period of 12 months ending on that fixed date;

“agricultural produce” has the meaning assigned to it by section 4(1);

“agricultural service” has the meaning assigned to it by section 4(1);

“ancillary supply” means a supply, forming part of a composite supply, which is not physically and economically dissociable from a principal supply and is capable of being supplied only in the context of the better enjoyment of that principal supply;

F1[“annual turnover” has the meaning assigned to it by section 92B;]

“antiques” has the meaning assigned to it by section 87(1);

F2[“Appeal Commissioner” has the meaning given to it by section 2 of the Finance (Tax Appeals) Act 2015;]

“assignment”, in relation to an interest in immovable goods, means the assignment by a person of that interest in those goods or any part of those goods to another person, except that, if that other person at the time of the assignment retains the reversion on that interest in those goods, that assignment shall be a surrender;

“auction scheme” has the meaning assigned to it by section 89(1);

“body of persons” means any body politic, corporate or collegiate, and any company, partnership, fraternity, fellowship and society of persons, whether corporate or not corporate;

“building”, in the definition of “development”, includes, in relation to a transaction, any prefabricated or like structure in respect of which the following conditions are satisfied:

• (a) the structure—

• (i) has a rigid roof and one or more rigid walls and (other than in the case of a structure used for the cultivation of plants) a floor,

• (ii) is designed so as to provide for human access to, and free movement in, its interior,

• (iii) is for a purpose that does not require that it be mobile or portable, and

• (iv) does not have or contain any aids to mobility or portability;

and

(b)(i) neither the agreement in respect of the transaction nor any other agreement between the parties to that agreement contains a provision relating to the rendering of the structure mobile or portable or the movement or re-location of the structure after its erection, and

• (ii) the person (in this subparagraph referred to as the “relevant person”) for whom the structure is constructed, extended, altered or reconstructed signs and delivers, at the time of the transaction, to the person who constructed, extended, altered or reconstructed the structure, a declaration of the relevant person’s intention to retain it on the site on which it is at that time located;

“business” means an economic activity, whatever the purpose or results of that activity, and includes any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, and the exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis;

“calendar quarter” means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October;

F3[“call-off stock arrangements” means the dispatch or transport of goods from one Member State to another Member State where, at the time of the dispatch or transport of the goods to such other Member State, the identity of the person to whom those goods will be supplied at a later stage and after the goods have arrived in the Member State of destination is known to the supplier.]

“capital goods” means developed immovable goods and includes refurbishment within the meaning of section 63(1), and a reference to a capital good includes a reference to any part thereof and the term “capital good” shall be construed accordingly;

“clothing” does not include footwear;

“Collector-General” means the Collector-General appointed under section 851 of the Taxes Consolidation Act 1997;

“collectors’ items” has the meaning assigned to it by section 87(1);

“Community” F4[, subject to subsection (4A),] has the same meaning as it has in Articles 5 to 8 of the VAT Directive, and cognate references shall be construed accordingly;

“completed”, in respect of immovable goods, has the meaning assigned to it by section 94(1);

“composite supply” means a supply made by a taxable person to a customer comprising 2 or more supplies of goods or services or any combination of those, supplied in conjunction with each other, one of which is a principal supply;

“contractor”, in relation to contract work, means a person who makes or assembles movable goods;

“contract work” means the service of handing over by a contractor to another person of movable goods made or assembled by the contractor from goods entrusted to the contractor by that other person, whether or not the contractor has provided any part of the goods used;

F5[“Customs Acts” has the meaning given to it by section 2(3) of the Customs Act 2015;]

“customs-free airport” means the land which, under the Customs-free Airport Act 1947, for the time being constitutes the Customs-free airport;

“development”, in relation to any land, means—

• (a) the construction, demolition, extension, alteration or reconstruction of any building on the land, or

• (b) the carrying out of any engineering or other operation in, on, over or under the land to adapt it for materially altered use;

F6[“distance sales of goods imported from third territories or third countries” means supplies of goods dispatched or transported by or on behalf of the supplier, including where the supplier intervenes indirectly in the transport or dispatch of the goods, from outside the Community, to a customer in a Member State, where—

• (a) the supply of goods is carried out for a taxable person, or a non-taxable legal person, whose intra-Community acquisitions of goods are not subject to value-added tax pursuant to Article 3(1), or for any other non-taxable person, and

• (b) the goods supplied are neither new means of transport nor goods supplied after assembly or installation, with or without a trial run, by or on behalf of the supplier;]

“electronically supplied services” includes—

• (a) website supply, web-hosting, distance maintenance of programmes and equipment,

• (b) supply of software and updating of it,

• (c) supply of images, text and information, and making databases available,

• (d) supply of music, films and games (including games of chance and gambling games) and of political, cultural, artistic, sporting, scientific and entertainment broadcasts and events, and

• (e) supply of distance teaching,

and “electronic service” shall be construed accordingly, but where the supplier of a service and his or her customer communicate by means of electronic mail, this shall not of itself mean that the service performed is an electronic service;

“enactment” means an Act or statutory instrument or any part of an Act or statutory instrument;

“excisable products” means the products referred to in section 97 of the Finance Act 2001;

“exempted activity” means—

• (a) a supply of immovable goods in respect of which, pursuant to F7[sections 93(2)(a)(i), 94(2) and 95(3) and (7)(b)], tax is not chargeable, and

• F8[(b) a supply of any goods or services of a kind specified in Schedule 1;]

“exportation of goods” means the exportation of goods to a destination outside the Community, and cognate words shall be construed accordingly;

“farmer” has the meaning assigned to it by section 4(1);

“flat-rate addition” has the meaning assigned to it by section 86(1);

“flat-rate farmer” means—

• (a) a farmer who is not an accountable person,

• (b) a farmer who is an accountable person referred to in section 9(4) or 12(3), or

• (c) a person who, in accordance with section 17(2), is deemed not to be an accountable person with respect to supplies of a kind specified in the definition of “farmer” in section 4(1),

in so far as that farmer engages in the supply of agricultural produce or agricultural services within the State;

“footwear” includes shoes, boots, slippers and the like but does not include stockings, under-stockings, socks, ankle-socks or similar articles or footwear without soles or footwear which is or incorporates skating or swimming equipment;

“free port” means the land declared to be a free port for the purposes of the Free Ports Act 1986 by an order made under section 2 of that Act;

“freehold equivalent interest” means an interest in immovable goods (other than a freehold interest) the transfer of which constitutes a supply of goods in accordance with Chapter 1 of Part 3;

“fur skin” means any skin with the fur, hair or wool attached except the skin of woolled sheep or lamb;

“goods” means all movable and immovable objects (other than things in action or money), and references to goods include references to both new and used goods;

“goods threshold” means F9[€85,000];

“hire”, in relation to movable goods, includes a letting on any terms including a leasing;

F10[“immovable goods” has the same meaning as “immovable property” has in Article 13b (inserted by Council Implementing Regulation 1042/2013 of 7 October 2013³⁰ ) of Council Implementing Regulation 282/2011/EU of 15 March 2011³¹;]

“importation of goods” means the importation of goods from outside the Community into the State—

• (a) directly, or

• (b) through one or more than one other Member State where value-added tax referred to in the VAT Directive has not been chargeable on the goods in such other Member State or Member States in respect of the transaction concerned,

and cognate words shall be construed accordingly;

“independently”, in relation to a taxable person, excludes a person who is employed or who is bound to an employer by a contract of employment or by any other legal ties creating the relationship of employer and employee as regards working conditions, remuneration and the employer’s liability;

“individual supply” means a supply of goods or services which is a constituent part of a multiple supply and which is physically and economically dissociable from the other goods or services forming part of that multiple supply, and is capable of being supplied as a good or service in its own right;

“inspector of taxes” means an inspector of taxes appointed under section 852 of the Taxes Consolidation Act 1997;

“intra-Community acquisition”, in relation to goods, has the meaning assigned to it by section 24;

F6[“intra-Community distance sales of goods” means supplies of goods dispatched or transported by or on behalf of the supplier, including where the supplier intervenes indirectly in the transport or dispatch of the goods, from a Member State other than that in which the dispatch or transport of the goods to the customer ends, where—

• (a) the supply of goods is carried out for a taxable person, or for a non-taxable legal person, whose intra-Community acquisitions of goods are not subject to value-added tax pursuant to Article 3(1) of the VAT Directive, or for any other non-taxable person, and

• (b) the goods supplied are neither new means of transport nor goods supplied after assembly or installation, with or without a trial run, by or on behalf of the supplier;]

“joint option for taxation” has the meaning assigned to it by section 94;

“landlord’s option to tax” has the meaning assigned to it by section 97;

F11[“livestock” means live—

• (a) cattle, sheep, goats, pigs and deer, and

• (b) horses normally intended for use in the preparation of foodstuffs or in agricultural production;]

“local authority” has the meaning assigned to it by the Local Government Act 2001;

“margin scheme” has the meaning assigned to it by section 87(1);

“Minister” means the Minister for Finance;

“movable goods” means goods other than immovable goods;

“multiple supply” means 2 or more individual supplies made by a taxable person to a customer where those supplies are made in conjunction with each other for a total consideration covering all of those individual supplies, and where those individual supplies do not constitute a composite supply;

“new means of transport” means motorised land vehicles with an engine cylinder capacity exceeding 48 cubic centimetres or a power exceeding 7.2 kilowatts, vessels exceeding 7.5 metres in length and aircraft with a take-off weight exceeding 1,550 kilogrammes—

• (a) which are intended for the transport of persons or goods, and

(b)(i) which in the case of vessels and aircraft were supplied 3 months or less after the date of first entry into service and in the case of land vehicles were supplied 6 months or less after the date of first entry into service, or

• (ii) which have travelled 6,000 kilometres or less in the case of land vehicles, sailed for 100 hours or less in the case of vessels or flown for 40 hours or less in the case of aircraft,

other than vessels and aircraft of the kind referred to in paragraph 4(2) of Schedule 2;

“person registered for value-added tax”—

• (a) in relation to another Member State, means a person currently issued with an identification number in that State for the purposes of accounting for value-added tax referred to in the VAT Directive,

• (b) in relation to the State, means a registered person;

“principal supply” means the supply of goods or services which constitutes the predominant element of a composite supply and to which any other supply forming part of that composite supply is ancillary;

“public body” means—

• (a) a Department of State,

• (b) a local authority, or

• (c) a body established by any enactment;

“registered person” means a person who is registered in the register maintained under section 65;

“regulations” means regulations under section 120;

“repealed enactment” has the meaning assigned to it by section 121;

“second-hand goods” has the meaning assigned to it by section 87(1);

“secretary” includes such persons as are referred to in section 1044(2) of the Taxes Consolidation Act 1997 and section 55(1) of the Finance Act 1920;

“services threshold” means F9[€42,500];

“stock-in-trade”, F12[in relation to a person, means goods that are]—

• (a) F12[movable goods of a kind] that the person has supplied in the ordinary course of the person’s business and that—

• (i) are held for supply (otherwise than because of section 19(1)(f)), or

• (ii) would be so held if they were mature or if their manufacture, preparation or construction had been completed,

• (b) materials incorporated into immovable goods of a kind that—

• (i) are supplied by the person in the ordinary course of the person’s business, and

• (ii) have not been supplied by the person since the goods were developed, but are held for supply, or would be so held if their development had been completed,

and such materials shall be taken to have been supplied to the same extent as the immovable goods into which they have been incorporated are taken to have been supplied,

• (c) consumable materials that the person has incorporated into immovable goods in the course of a business that consists of the supply of a service involving constructing, repairing, painting or decorating immovable goods where that service has yet to be completed, and such materials shall be taken to have been supplied to the extent that the service in relation to which they have been used has been supplied, or

• (d) materials that have not been incorporated in goods and—

• (i) are used by the person in the manufacture or construction of goods of a kind that the person supplies in the ordinary course of the person’s business, or

• (ii) if the person’s ordinary business consists of repairing, painting or decorating immovable goods, are used by the person as consumable materials in the course of that business;

“supply”—

• (a) in relation to goods, has the meaning assigned to it by subsection (3) and Chapter 1 of Part 3,

• (b) in relation to services, has the meaning assigned to it by Chapter 3 of Part 3,

and cognate words shall be construed accordingly;

“surrender”, in relation to an interest in immovable goods—

• (a) means the surrender by a person (in this definition referred to as the “lessee”) of an interest in those goods or any part of those goods to the person (in this definition referred to as the “lessor”) who, at the time of the surrender, retains the reversion on that interest in those goods, and

• (b) includes—

• (i) the abandonment of that interest in those goods by the lessee,

• (ii) the failure of the lessee to exercise any option of the kind referred to in section 93(1)(a) in relation to that interest in those goods (but excluding any such failure if such interest were created on or after 1 July 2008), and

• (iii) the recovery by the lessor of that interest in those goods by ejectment or forfeiture prior to the date that the interest would, but for its surrender, have expired;

“tax” means value-added tax chargeable by virtue of this Act;

“taxable dealer”—

• (a) in relation to supplies of gas through the natural gas distribution system, F13[or of heat or cooling energy through heating or cooling networks,] or of electricity, has the meaning assigned to it by section 31(1)(a), and

• (b) in relation to supplies of movable goods (including a means of transport and agricultural machinery) has the meaning assigned to it by section 87(1);

“taxable goods”, in relation to any supply, intra-Community acquisition or importation, means goods the supply of which is not an exempted activity;

“taxable period” means a period of 2 months beginning on 1 January, 1 March, 1 May, 1 July, 1 September or 1 November;

“taxable person” means a person who independently carries on a business in the Community or elsewhere;

“taxable services” means services the supply of which is not an exempted activity;

“telecommunications services” means services relating to the transmission, emission or reception of signals, writing, images and sounds or information of any nature by wire, radio, optical or other electromagnetic systems, and includes—

• (a) the related transfer or assignment of the right to use capacity for such transmission, emission or reception, and

• (b) the provision of access to global information networks;

“telephone card” means a card, or a means other than money—

• (a) that confers a right to access a telecommunications service and, in cases where the supplier of the telecommunications service so agrees with another supplier (in this definition referred to as a “contracted third party supplier”), a right to receive other services or goods from that contracted third party supplier, and

• (b) that, when the card or other means is supplied to a person other than for the purpose of resale, entitles the supplier to a consideration for the supply under circumstances that preclude the user of the card or means from being liable for any further charge for access to the telecommunications service or for the receipt of services or goods from a contracted third party supplier;

“VAT Directive” means Council Directive No. 2006/112/EC of 28 November 2006 ¹ on the common system of value-added tax;

“vessel”, in relation to transport, means a waterborne craft of any type, whether self-propelled or not, and includes a hovercraft;

“works of art” has the meaning assigned to it by section 87(1).

• (2) In this Act references to moneys received by a person include references to—

• (a) money lodged or credited to the account of the person in any bank, savings bank, building society, hire purchase finance concern or similar financial concern,

• (b) money (other than money referred to in paragraph (a)) which under an agreement (other than an agreement providing for discount or a price adjustment made in the ordinary course of business or an arrangement with creditors) has ceased to be due to the person,

• (c) money due to the person which, in accordance with section 1002 of the Taxes Consolidation Act 1997, is paid to the Revenue Commissioners by another person and has thereby ceased to be due to the person by that other person, and

• (d) money, which, in relation to money received by a person from another person, has been deducted in accordance with—

• (i) Chapter 1 of Part 18 of the Taxes Consolidation Act 1997, or

• (ii) Chapter 2 of Part 18 of the Taxes Consolidation Act 1997,

and has thereby ceased to be due to the first-mentioned person by the other person,

and money so lodged or credited to the account of a person shall be deemed to have been received by the person on the date of the making of the lodgement or credit and money which has so ceased to be due to a person shall be deemed to have been received by the person on the date of the cesser.

• (3) For the purposes of this Act, the provision of electricity, gas and any form of power, heat, refrigeration or ventilation shall be deemed to be a supply of goods and not a supply of services.

• (4) In this Act, a reference to the territory of a Member State has the same meaning as it has in Articles 5 to 8 of the VAT Directive, and F4[, subject to subsection (4A),] references to Member States and cognate references shall be construed accordingly.

• F4[(4A) In this Act, each reference to—

• (a) Community, and

• (b) Member State,

shall apply as if the reference included a reference to Northern Ireland, save—

• (i) where the reference occurs in a provision specified in Part 1 of F14[Schedule 9,]

• (ii) in the case of a provision specified in Part 2 of Schedule 9, in so far as the provision applies to F14[services, and]]

• F1[(iii) where the reference occurs in a provision specified in Part 3 of Schedule 9.]

• (5) References in any other enactment to the “Value-Added Tax Acts” mean this Act and every enactment which is to be read together with this Act.

3. Charge of value-added tax. [VATA s. 2]

3.— Except as expressly otherwise provided by this Act, a tax called value-added tax is, subject to and in accordance with this Act and regulations, chargeable, leviable and payable on the following transactions:

• (a) the supply for consideration of goods by a taxable person acting in that capacity when the place of supply is the State;

• (b) the importation of goods into the State;

• (c) the supply for consideration of services by a taxable person acting in that capacity when the place of supply is the State;

• (d) the intra-Community acquisition for consideration by an accountable person of goods (other than new means of transport) when the acquisition is made within the State;

• (e) the intra-Community acquisition for consideration of new means of transport when the acquisition is made within the State.

PART 2 Accountable persons

Chapter 1 Interpretation

4. Definitions — Part 2. [VATA s. 8(3B) and (9)]

4.—(1) In this Act—

“agricultural produce”, in relation to a farmer, means goods (other than live greyhounds) produced by the farmer in the course of an Annex VII activity;

“agricultural service”, in relation to a farmer, means any Annex VIII service supplied by the farmer using his or her own labour or that of his or her employees or effected by means of machinery, plant or other equipment normally used for the purposes of an Annex VII activity carried on by the farmer;

“Annex VII activity” means any activity of a description specified in F15[Annex VII of the VAT Directive (the text of which Annex is contained in Part 1 of Schedule 4) and Article 295(2)];

“Annex VIII service” means any service of a description specified in F16[…] Annex VIII of the VAT Directive (the text of which Annex is contained in Part 2 of Schedule 4);

“farmer” means a person who engages in at least one Annex VII activity, and—

• (a) whose supplies consist exclusively of either or both of the following:

• (i) supplies of agricultural produce;

• (ii) supplies of agricultural services;

or

• (b) whose supplies consist exclusively of either or both of the supplies specified in paragraph (a) and of one or more of the following:

• (i) supplies of machinery, plant or equipment which has been used by such person for the purposes of an Annex VII activity;

• F17[(ii) supplies of services consisting of the training of horses for racing, the total annual turnover for which has not exceeded, in the current calendar year or the previous calendar year, the services threshold;]

• (iii) supplies of goods and services (other than those referred to in subparagraphs (i) and (ii) or paragraph (a)) the total F17[annual turnover] for which is such that such person would not, because of section 6(1)(c) or (d), be an accountable person if such supplies were the only supplies made by him or her.

• (2) In this Part “control”—

• (a) in relation to a body corporate, means the power of a person to secure, by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate, or by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate, that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person,

• (b) in relation to a partnership, means the right to a share of more than one-half of the assets, or of more than one-half of the income, of the partnership.

Chapter 2 General rules

5. Persons who are, or who may become, accountable persons. [VATA s. 8(1) and (4)]

5.—(1)(a) Subject to paragraph (c), a taxable person who engages in the supply, within the State, of taxable goods or services shall be—

• (i) an accountable person, and

• (ii) accountable for and liable to pay the tax charged in respect of such supply.

• (b) Subject to paragraph (c), in addition, the persons referred to in F18[sections 9, 10, 12, 15, 17(1), 94(3), 108C, 109A and 91J(10)] shall be accountable persons.

• (c) A person not established in the State who supplies goods in the State only in the circumstances set out in section 10, or supplies a service in the State only in the circumstances set out in F19[section 16(3),] shall not be an accountable person.

• (2) F20[…]

6. Persons not accountable persons unless they so elect. [VATA s. 8(3) and (3D)(a)]

6.—(1) Subject to subsections (2) and (3) and F22[sections 9, 10, 12,] 14(1) and 17(1), and notwithstanding section 5(1), the following persons shall not, unless they otherwise elect and then only during the period for which such election has effect, be accountable persons:

• F21[(a) a farmer, for whose supply, in the current calendar year or the previous calendar year, of—

• (i) agricultural services (other than insemination services, stock minding or stock-rearing), the total annual turnover for which has not exceeded the services threshold,

• (ii) goods being bovine semen, the total annual turnover for which has not exceeded the goods threshold,

• (iii) goods, being horticultural type products of the kind specified in paragraph 22(1) of Schedule 3, to persons who are not engaged in supplying those goods in the course or furtherance of business, the total annual turnover for which has not exceeded the goods threshold,

• (iv) either or both services of the kind specified in subparagraphs (i) and (vi), together with any or all goods of the kind specified in subparagraph (v), the total annual turnover for which has not exceeded the services threshold,

• (v) any or all goods of the kind specified in subparagraph (ii), subparagraph (iii) where supplied in the circumstances set out in that subparagraph, and subparagraph (vii), the total annual turnover for which has not exceeded the goods threshold,

• (vi) agricultural services of the kind specified in an order made under section 86A, the total annual turnover for which has not exceeded the services threshold, or

• (vii) agricultural produce of the kind specified in an order made under section 86A, the total annual turnover for which has not exceeded the goods threshold;]

• (b) a person whose supplies of taxable goods or services consist exclusively of—

• (i) supplies, to accountable persons and persons to whom section 102 applies, of fish (not being at a stage of processing further than that of being gutted, salted and frozen) which he or she has caught in the course of a sea-fishing business, or

• (ii) supplies of the kind specified in subparagraph (i) and of either or both of the following:

• (I) supplies of machinery, plant or equipment which have been used by him or her in the course of a sea-fishing business;

• (II) supplies of other goods and services the total F21[annual turnover] for which is such that such person would not, because of paragraph (c) or (d), be an accountable person if such supplies were the only supplies made by him or her;

(c)F24[(i) subject to subparagraph (ii), a person for whose supply of goods (other than supplies of the kind specified in section 30(a) and (b) made by a person established in the State) and services the total annual turnover has not exceeded, in the current calendar year or the previous calendar year, the goods threshold,]

• (ii) subparagraph (i) shall apply only if at least 90 per cent of the total F24[annual turnover] referred to therein is derived from the supply of taxable goods (other than goods chargeable at any of the rates specified in section 46(1)(a) and (c) which were produced or manufactured by the person referred to in subparagraph (i) wholly or mainly from materials chargeable at the rate specified in section 46(1)(b));

• F24[(d) a person (other than a person to whom paragraph (a), (b) or (c) applies) for whose supply of goods and services the total annual turnover has not exceeded, in the current calendar year or the previous calendar year, the services threshold;]

• F25[(e) a person who is an accountable person solely by virtue of making exempt supplies of immovable goods, supplies specified in paragraphs 6 and 7 of Schedule 1 or insurance and reinsurance services.]

(2)(a) Supplies of bovine semen—

• (i) by a farmer to any other farmer licensed as an artificial insemination centre in accordance with the Live Stock (Artificial Insemination) Act 1947, or

• (ii) by a farmer to an accountable person over whom that farmer exercises control,

shall be disregarded in calculating the total consideration referred to in subsection (1)(a)(ii).

• (b) Where in the case of 2 or more persons one of whom exercises control over one or more of the other persons, supplies of goods of the same class or of services of the same nature are made by 2 or more of those persons, the total F24[annual turnover] relating to such supplies shall, for the purposes of the application of paragraphs (c) and (d) of subsection (1) in relation to each of those persons who made such supplies, be treated as if all of the supplies in question had been made by each of the last-mentioned persons.

• (c) Where a farmer supplies services or goods of the kind specified in F21[subsection (1)(a)(i), (ii), (iii), (vi) or (vii),] then paragraph (b) shall be deemed to apply to such supplies, notwithstanding that that paragraph does not otherwise apply to supplies by a farmer.

• (d) Subsection (1) shall not apply to a supply of the kind referred to in F22[section 12(3) or (5)] or 17(1).

F24[(3)(a) Subsection (1)(b) shall not apply to a person who is not established in the State.

• (b) Subject to section 92D(1), paragraphs (c)and (d) of subsection (1) shall not apply to a person who is not established in the State.]

7. Treatment of persons as not accountable. [VATA s. 8(6)]

7.— An accountable person (other than a person to whom section 8 applies) may, in accordance with regulations, be treated for the purposes of this Act as a person who is not an accountable person if the Revenue Commissioners are satisfied that, in the absence of an election under section 6(1), the person would not be an accountable person.

8. Cancellation of election. [VATA s. 8(5) and (5A)]

8.—F26[(1)(a) Provision may be made by regulations for the cancellation, at the request of a person, of an election made by the person under this Part and for the payment by him or her to the Revenue Commissioners, as a condition of such cancellation, of such a sum as is calculated in accordance with paragraph (b).

• (b) The sum referred to in paragraph (a) is calculated by the formula—

(A + B) — C

where—

A is the amount of tax repaid to the person referred to in paragraph (a) for the period for which the election has effect in respect of tax borne or paid in relation to the supply of goods or services, other than services of the kind referred to in paragraph 11 of Schedule 3,

B is the tax deductible in accordance with Chapter 1 of Part 8 in respect of intra-Community acquisitions made by that person during that period, and

C is the net total amount of tax (if any) paid by such person in accordance with Chapter 3 of Part 9 in relation to the supply of goods or services (other than services of the kind referred to in paragraph 11 of Schedule 3) by that person in that same period.]

(2)(a) Notwithstanding subsection (1), provision may be made by regulations for the cancellation, at the request of a person who supplies services of a kind referred to in paragraph 11 of Schedule 3, of an election made by the person under this Part and for the payment by him or her to the Revenue Commissioners, in addition to any amount payable in accordance with subsection (1), of such an amount (in this subsection referred to as the “cancellation amount”), as shall be determined in accordance with paragraph (b), as a condition of cancellation and the cancellation amount shall be payable as if it were tax due in accordance with Chapter 3 of Part 9 for the taxable period in which the cancellation comes into effect.

(b)(i) Where the person referred to in paragraph (a)—

• (I) was entitled to deduct tax in accordance with Chapter 1 of Part 8 in respect of the acquisition, purchase or development of immovable goods used by that person in the course of a supply of services of a kind referred to in paragraph 11 of Schedule 3, or

• (II) would be entitled to deduct tax in accordance with Chapter 1 of Part 8 in respect of the acquisition, as a result of a transfer to that person, of immovable goods used by him or her in the course of a supply of services of a kind referred to in paragraph 11 of Schedule 3, if that tax had been chargeable but for the application of section 20(2)(c) on that transfer,

then, in respect of each such acquisition, purchase or development, an amount (referred to in this subsection as the “adjustment amount”) shall be calculated in accordance with subparagraph (ii) and the cancellation amount shall be the sum of the adjustment amounts so calculated or, if there is only one such adjustment amount, that amount: but if there is no adjustment amount, the cancellation amount is nil.

• (ii) The adjustment amount shall be determined by the formula—

F26[D]× (10 —F26[E])

10

where—

F26[D] is—

• (I) the amount of tax deductible in respect of such acquisition, purchase or development of such immovable goods, or

• (II) the amount of tax that would be deductible in respect of such acquisition of such immovable goods if section 20(2)(c) had not applied to the transfer of such immovable goods,

and

F26[E] is the number of full years for which such immovable goods were used by the person in the course of the supply of services of a kind referred to in paragraph 11 of Schedule 3: but if such number of full years is in excess of 10, such adjustment amount shall be deemed to be nil.

• (c) For the purposes of paragraph (b), a full year shall be any continuous period of 12 months.

• (d) This subsection does not apply to immovable goods acquired or developed on or after 1 July 2008.

Chapter 3 Rules for intra-Community acquisitions

9. Intra-Community acquisitions and accountable persons. [VATA s. 8(1A)(a), (b), (c) and (d)]

9.—(1) Where a person engages in the intra-Community acquisition of goods in the State in the course or furtherance of business, he or she shall be—

• (a) an accountable person, and

• (b) accountable for and liable to pay the tax chargeable.

• (2) Subject to subsection (3) and F27[sections 12(3) and (5),] and 17(1), and notwithstanding subsection (1), a person for whose intra-Community acquisitions of goods (being goods other than new means of transport or goods subject to a duty of excise) the total consideration for which has not exceeded and is not likely to exceed €41,000 in any continuous period of 12 months shall not, unless the person otherwise elects and then only during the period for which such election has effect, be an accountable person.

• (3) Where section 5(1) applies to a person referred to in subsection (2), then subsection (2) shall not apply to the person unless section 6(1) also applies to him or her.

• (4) Subject to subsection (5), a person who is an accountable person by virtue of this section or section 10 and who is a person referred to in section 6(1)(a) or (b) shall be deemed to be an accountable person only in respect of—

• (a) intra-Community acquisitions of goods which are made by him or her, and

• (b) any services of the kind referred to in F27[section 12 or 17(1)] which are received by him or her.

• (5) A person may elect that subsection (4) shall not apply to him or her.

• (6) Subject to subsection (7), a person who is an accountable person by virtue of this section or section 10 and who is a person referred to in section 17(2) shall be deemed to be an accountable person only in respect of—

• (a) intra-Community acquisitions of goods which are made by him or her,

• (b) racehorse training services which are supplied by him or her, and

• (c) any services of the kind referred to in F27[section 12 or 17(1)] which are received by him or her.

• (7) A person may elect that subsection (6) shall not apply to him or her.

10. Certain supplies of goods — supplier not established in the State. [VATA s. 8(1A)(f) and (g)]

10.—(1) Where a person not established in the State supplies gas through the natural gas distribution system, F28[or heat or cooling energy through heating or cooling networks,] or electricity, to a recipient in the State, and where the recipient is—

• (a) a taxable person who carries on a business in the State, or

• (b) a public body,

then that recipient shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if the recipient supplied those goods in the course or furtherance of business.

• (2) Where a person not established in the State supplies goods in the State which are installed or assembled, with or without a trial run, by or on behalf of the person, and where the recipient of the supply of those goods is—

• (a) a taxable person who carries on a business in the State, or

• (b) a public body,

then that recipient shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if the recipient supplied those goods in the course or furtherance of business.

11. Other provisions in relation to goods. [VATA s. 8(2B) and (3D)(b)]

11.—(1) Where a person is an accountable person only because of an intra-Community acquisition of a new means of transport, then the person shall not, unless he or she so elects, be an accountable person for the purposes of this Act except for section 79(2) or (3).

• (2) Where—

• (a) a person is an accountable person only because of an intra-Community acquisition of excisable products, and

• (b) by virtue of the acquisition, and in accordance with F29Chapters 2A and 2B of Part 2 of [Finance Act 2001], and any other enactment which is to be construed together with that Chapter, the duty of excise on those products is payable in the State,

then the person shall not, unless he or she so elects, be an accountable person for any purposes of this Act except for section 79(4).

• (3) A person who is not established in the State shall, unless the person opts to register in accordance with section 65, be deemed not to have made an intra-Community acquisition or a supply of goods in the State where the only supplies by him or her in the State are in the circumstances set out in section 23.

• F30[(4) A person who is not established in the State, and who does not have a fixed establishment in the State, shall be deemed not to have made an intra-Community acquisition or a supply of goods in the State where such person transfers goods to an accountable person in the State under call-off stock arrangements to which section 23A applies.]

Chapter 4 Services supplied in the State by persons established outside the State

12. Services received from abroad and accountable persons. [VATA s. 8(1A)(aa) and (ab) and (2)(b) and (c)]

12.—(1) Where—

• (a) a taxable person who carries on a business in the State, or a person to whom a registration number has been assigned in accordance with section 65(2), receives a service from a supplier established outside the State, and

• (b) the place of supply of the service (as determined in accordance with section 34(a)) is the State,

then the person is accountable for, and liable to pay, the tax chargeable in the State as if he or she had supplied that service for consideration in the course or furtherance of business.

• (2) Where—

• (a) a taxable person who carries on a business in the State, or

• (b) a public body,

receives a service F31[(other than a service of a kind referred to in section 33(2)(b), (ba) or (c))] from a supplier not established in the State, and the place of supply of the service (as determined in accordance with section 34(c)) is the State, then the recipient of the service is accountable for, and liable to pay, the tax chargeable in the State as if that recipient had supplied the service for consideration in the course or furtherance of business.

• (3) Subject to subsection (4), a person who is an accountable person by virtue of this section or F32[section 17(1)] and who is a person referred to in section 6(1)(a) or (b) shall be deemed to be an accountable person only in respect of—

• (a) any intra-Community acquisitions of goods which are made by him or her, and

• (b) services of the kind referred to in this section or F32[section 17(1)] which are received by him or her.

• (4) A person may elect that subsection (3) shall not apply to him or her.

• (5) Subject to subsection (6), a person who is an accountable person by virtue of this section or F32[section 17(1)] and who is a person referred to in section 17(2) shall be deemed to be an accountable person only in respect of—

• (a) any intra-Community acquisitions of goods which are made by him or her,

• (b) racehorse training services which are supplied by him or her, and

• (c) services of the kind referred to in this section or F32[section 17(1)] which are received by him or her.

• (6) A person may elect that subsection (5) shall not apply to him or her.

13. Certain supplies of services — supplier not established in the State. [VATA s. 8(2)(aa)]

13.— F33[…]

Chapter 5 Supplementary provisions

14. The State and public bodies. [VATA s. 8(1A)(e) and (2A) and FA 2010 s. 117(2)(b) and (c)]

14.—(1) For the purposes of sections 9 and 10, where an intra-Community acquisition is effected in the State by a public body, the acquisition shall be deemed to have been effected in the course or furtherance of business.

• (2) Notwithstanding section 3 but subject to subsection (3), the State or any public body shall not be treated as a taxable person acting in that capacity in respect of any activity or transaction that is carried out by it in, or is closely linked to, the exercise by the State or that public body of particular rights or powers conferred on it by any enactment, except where—

• (a) that activity is listed in Annex I of the VAT Directive (the text of which Annex is contained in Schedule 6) and is carried out by the State or the public body on a more than negligible scale, or

• (b) not treating the State or that public body as a taxable person in respect of that activity or transaction creates or would likely create a significant distortion of competition.

(3)(a) For the purposes of this subsection “community facilities” means—

• (i) facilities for taking part in sporting or physical education activities and services closely related to the provision of such facilities (other than facilities for taking part in golf and for this purpose facilities for taking part in golf do not include facilities for taking part in pitch and putt), and

• (ii) the hiring of halls, meeting rooms, grounds and other facilities of a similar nature to non-profit making sporting, cultural, social and community organisations.

• (b) Subsection (2), in so far as it applies to the supply of community facilities, comes into operation on such day or days as the Minister may by order appoint and different days may be so appointed for different purposes or different community facilities.

• (c) Neither the State nor any local authority shall be an accountable person with respect to the supply by it of a community facility until the coming into operation of an order under paragraph (b) in respect of that community facility.

15. VAT groups. [VATA s. 8(8)]

15.—(1) Subject to subsection (2), where the Revenue Commissioners are satisfied that 2 or more persons established in the State, at least one of whom is a F34[accountable person], are closely bound by financial, economic and organisational links and it seems necessary or appropriate to them for the purpose of efficient and effective administration (including collection) of the tax to do so, then, for the purpose of this Act, the Commissioners may, whether following an application on behalf of those persons or otherwise—

• (a) by notice in writing (in this section referred to as a “group notification”) to each of those persons deem them to be a single F34[accountable person] (in this section referred to as a “group”), and the persons so notified shall then be regarded as being in the group for as long as this subsection applies to them, but section 65 shall apply in respect of each of the members of the group, and—

• (i) one of those persons, who shall be notified accordingly by the Commissioners, shall be responsible for complying with this Act in respect of the group, and

• (ii) all rights and obligations arising under this Act in respect of the transactions of the group shall be determined accordingly,

and

• (b) make each person in the group jointly and severally liable to comply with this Act and regulations (including the provisions requiring the payment of tax) that apply to each of those persons and subject to the penalties under this Act to which they would be subject if each such person were liable to pay to the Commissioners the whole of the tax chargeable, apart from regulations under this section, in respect of each such person.

• (2) This section shall not apply in the case of—

• (a) the supply of immovable goods by any person in the group to any other person in the group,

• (b) the requirement to issue an invoice or other document, in accordance with Chapter 2 of Part 9, in respect of supplies to persons other than supplies between persons who are jointly and severally liable to comply with this Act in accordance with subsection (1)(b),

• (c) the requirement to furnish a statement in accordance with section 82 F35[or 83], or

• (d) the transfer of ownership of goods specified in section 20(2)(c) from any person in the group to any other person in the group, except where, apart from this section, each of the persons whose activities are deemed to be carried on by the group is an accountable person.

• (3) The Revenue Commissioners may, by notice in writing to each person in the group, as on and from the date specified in the notice F36[…] cancel the group notification of the group.

• (4) As on and from the date on which the group notification of the group is cancelled under subsection (3), this Act and regulations shall apply to all the persons who were members of the group as if that group notification had not been issued, but without prejudice to the liability of any of those persons for tax or penalties in respect of anything done or not done during the period for which the group notification was in force.

• F37[(4A) Where there has been a significant change in the financial, economic and organisational links between the persons in a group, the person in the group notified in accordance with subsection (1)(a)(i) shall, not later than 30 days after the end of the taxable period during which the significant change concerned occurs, notify the Revenue Commissioners in writing that there has been such a significant change.

• (4B) Where—

• (a) a person in a group ceases to be established in the State, or

• (b) the requirement that at least one of the persons in the group concerned is an accountable person is no longer met, the person in the group notified in accordance with subsection (1)(a)(i) shall, not later than 30 days after the end of the taxable period during which the circumstance described in paragraph (a) or (b), as the case may be, has occurred, notify the Revenue Commissioners in writing of the occurrence of that circumstance.]

• (5) Where—

• (a) a person in the group (in this section referred to as the “landlord”) having acquired an interest in, or developed, immovable goods to which section 4 of the repealed enactment applied, whether such acquisition or development occurred before or after the landlord became a person in the group, subsequently surrenders possession of those immovable goods, or any part of them, to another person in the group (in this section referred to as the “occupant”) where the surrender of possession, if it were to a person not in the group, would not constitute a supply of immovable goods in accordance with section 4 of the repealed enactment, and

• (b) either the landlord or the occupant subsequently ceases to be a person in the group (in this section referred to as a “cessation”),

then, F38[…]if the landlord has not exercised the landlord’s option to tax in accordance with section 97 in respect of the letting of those immovable goods at the time of the cessation F38[…]—

• (i) the surrender of possession, or

• (ii) if that landlord surrendered possession of those immovable goods more than once to another person in the group, the first such surrender of possession,

shall be deemed to occur when that first such cessation (in this section referred to as the “relevant cessation”) takes place.

• (6) F38[…]

• (7) The Revenue Commissioners may make regulations as seem to them to be necessary for the purposes of this section.

16. Reverse charge for certain supplies. [VATA s. 8(1B), (1C) and (1D)]

16.—(1) F39[…]

(2)(a) In this subsection—

“allowance” has the meaning assigned to it by Article 3 of the Directive;

“Directive” means Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 ² (as amended) establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC;

“greenhouse gases” has the meaning assigned to it by Article 3 of the Directive;

“greenhouse gas emission allowances” means allowances to emit greenhouse gases transferable in accordance with the Directive and other units that may be used by operators for compliance with the Directive;

“operator” has the meaning assigned to it by Article 3 of the Directive.

• (b) Where a taxable person who carries on a business in the State (in this subsection referred to as a “recipient”) receives greenhouse gas emission allowances from another taxable person who carries on a business in the State, then—

• (i) the recipient shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if that recipient made that supply in the course or furtherance of business, and

• (ii) the person who supplied those greenhouse gas emission allowances shall not be accountable for or liable to pay such tax in respect of that supply.

(3)(a) Paragraph (b) and sections 59(2)(i) and 66(4) shall be construed together with Chapter 2 of Part 18 of the Taxes Consolidation Act 1997.

• (b) Where a principal to whom F40[section 530A] of the Taxes Consolidation Act 1997 applies (other than a principal to whom subparagraphs (ii) or (iii) of F40[section 530A(1)(b)] of the Taxes Consolidation Act 1997 applies) receives services consisting of construction operations (as defined in paragraphs (a) to (f) of section 530(1) of that Act) from a subcontractor, then—

• (i) that principal shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if that principal supplied those services in the course or furtherance of business, and

• (ii) the subcontractor shall not be accountable for or liable to pay such tax in respect of that supply.

F41[(4)(a) In this subsection—

“dealing in scrap metal” means the purchase, sale, resale or recovery of scrap metal;

“recovery”, in relation to scrap metal, means any activity carried on for the purposes of reclaiming, recycling or re-using, in whole or in part, scrap metal and any activities related to such reclamation, recycling or re-use;

“scrap metal” includes scrapped metal and metal waste originating from, or extracted from, the processing of metals, metal derived from vehicles, metal derived from construction and demolition waste, machine parts and metal items no longer useable in their original form due to their breaking, obsolescence, shearing, wearing or the like, and also includes goods listed in paragraphs (1) to (3) of Annex VI of the VAT Directive.

• (b) Notwithstanding section 56, where a taxable person carries on a business in the State, which consists of or includes dealing in scrap metal (in this subsection referred to as a “recipient”) and he or she receives a supply of scrap metal from another taxable person who carries on a business in the State, then—

• (i) the recipient shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if that recipient made that supply in the course or furtherance of business, and

• (ii) the person who supplied the scrap metal shall not be accountable for or liable to pay such tax in respect of that supply. ]

F42[(5)(a) In this subsection “construction work”, in relation to immovable goods, includes—

• (i) construction, extension, alteration and demolition services, and

• (ii) engineering work or other operations which adapt those immovable goods for materially altered use.

• (b) Where an accountable person supplies construction work in the State to a taxable person (in this subsection referred to as a “recipient”) to whom the accountable person is connected (within the meaning of section 97(3)), then—

• (i) the recipient shall, in relation to such supplies, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if that recipient made that supply in the course or furtherance of business, and

• (ii) the person who supplied the construction work shall not be accountable for or liable to pay such tax in respect of those supplies.]

F43[(6)(a) In this subsection—

“gas” means gas supplied through the natural gas distribution system.

• (b) Where a taxable person who carries on a business in the State makes a supply of gas or of electricity to a taxable dealer who carries on a business in the State (in this subsection referred to as a “recipient”), then—

• (i) the recipient shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if that recipient made that supply in the course or furtherance of business, and

• (ii) the person who supplied that gas or electricity shall not be accountable for or liable to pay such tax in respect of that supply.

(7)(a) In this subsection—

“a gas or an electricity certificate” means an electronic document which conveys information about the source and production of energy.

• (b) Where a taxable person who carries on a business in the State makes a supply of a gas or an electricity certificate to another taxable person who carries on a business in the State (in this subsection referred to as a “recipient”), then—

• (i) the recipient shall, in relation to that supply, be an accountable person or be deemed to be an accountable person and shall be liable to pay the tax chargeable as if that recipient made that supply in the course or furtherance of business, and

• (ii) the person who supplied that gas or electricity certificate shall not be accountable for or liable to pay such tax in respect of that supply.]

17. Other provisions in relation to services. [VATA s. 8(2)(d) and (3A)]

17.—(1)(a) In this subsection—

“premises provider” means a person who owns, occupies or controls land, and references to the premises provider’s land mean the land that is so owned, occupied or controlled;

“relevant office” means the office of the Revenue Commissioners which would normally deal with the examination of the records kept by the premises provider in accordance with Chapter 7 of Part 9.

• (b) Where a premises provider allows, in the course or furtherance of business, a person not established in the State to supply goods for consideration in the course or furtherance of business (in this subsection referred to as a “mobile trader”) on the premises provider’s land for a period of less than F44[28 consecutive days], then that premises provider shall, not later than 14 days before the day when the mobile trader is allowed to supply goods on that land, furnish to the Revenue Commissioners, at the relevant office, the following particulars:

• (i) the name and address of the mobile trader;

• (ii) the dates on which the mobile trader intends to supply goods on that land;

• (iii) the address of that land; and

• (iv) any other information as may be specified in regulations.

• F45[(c) Where a premises provider allows, in the course or furtherance of business, a promoter not established in the State to supply on the premises provider’s land—

F46[ (i) services consisting of the admission to, and the provision of any ancillary services related to, a cultural, artistic, entertainment or similar event, and ]

• (ii) where, in accordance with paragraph (g) or (ga) of section 34, the place of supply of those services is where the event concerned actually takes place,

then that premises provider shall, not later than 14 days before such services are scheduled to begin, furnish to the Revenue Commissioners, at the relevant office, the following particulars:

• (I) the name and address of the promoter;

• (II) details (including the dates, duration and venue) of the event or performance commissioned or procured by the promoter in the provision of that service; and

• (III) any other information related to the promoter or the event or performance, as may be specified in regulations.]

• (d) Where a premises provider fails to provide to the Revenue Commissioners true and correct particulars as required in accordance with paragraph (b) or (c), then the Commissioners may, where it appears necessary to them to do so for the protection of the revenue, make the premises provider jointly and severally liable with a mobile trader or promoter, as the case may be, for the tax chargeable in respect of supplies made by that mobile trader or promoter on the premises provider’s land, and in those circumstances the Commissioners shall notify the premises provider in writing accordingly.

• (e) A premises provider who has been notified in accordance with paragraph (d) shall be deemed to be an accountable person and shall be liable to pay the tax referred to in that paragraph as if it were tax due in accordance with Chapter 3 of Part 9 by the premises provider for the taxable period within which the supplies are made by the mobile trader or promoter, but the premises provider shall not be liable to pay tax referred to in paragraph (d) which the Revenue Commissioners are satisfied was accounted for by a mobile trader or promoter.

(2)(a) Where a person who supplies services consisting of the training of horses for racing, F47[the total annual turnover for which has exceeded, in the current calendar year or the previous calendar year, the services threshold,] would, but for the supply of such services, be a farmer, the person shall be deemed to be an accountable person only in respect of—

• (i) the supply of those services,

• (ii) any intra-Community acquisitions of goods made by him or her, and

• (iii) any services of the kind referred to in subsection (1) or F45[section 12] received by him or her.

• (b) In the absence of an election referred to in section 6(1), the person referred to in paragraph (a) shall be deemed not to be an accountable person in relation to the supply of any of the goods or services specified in—

• (i) paragraph (a) of the definition of “farmer” in section 4(1), and

• (ii) paragraph (b)(i) and (iii) of that definition.

18. Distortion of competition, deemed taxable supplies, etc. [VATA s. 8(3C), (3E) and (7)]

18.—(1)(a) Notwithstanding sections 5(1) and 52(1) but subject to section 6(1), where a person (in this subsection referred to as the “relevant person”) supplies services which are exempt in accordance with F48[section 52 and, paragraph 3(4) or 4(3) of Schedule 1], then an authorised officer (being an officer of the Revenue Commissioners authorised by them in writing for the purposes of this subsection) shall—

• (i) if the officer is satisfied that that supply of those services has created or is likely to create a distortion of competition such as to place at a disadvantage a commercial enterprise which is an accountable person supplying similar-type services, or