Finance Bill 2012 was published yesterday. Here is an overview of the main measures contained therein. The Bill and Explanatory Memorandum are available here.
Property relief measures
There are two key elements to today’s property relief measures:
- A 5% USC surcharge on the use of property incentives, and
- A restriction of property-based capital allowances.
1. USC surcharge
An additional USC charge of 5% will apply for 2012 and subsequent years to
individuals in the following circumstances:
- The individual has aggregate income in the tax year of €100,000 or more, and
- Part of that income is sheltered by accelerated industrial buildings allowances or section 23 type relief claimed by residential lessors.
The surcharge is applied to the amount of the income sheltered by the property relief.
2. Restriction on property-based capital allowances
The measures included in today’s Finance Bill are not as restrictive as those
envisaged by Finance Act 2011. Finance Bill 2012 only restricts carried-forward
relief claimed by passive investors in accelerated capital allowances projects.
The measures apply as follows:
- Where the tax life of the project ends at any time before 1 January 2015, no carry-forward of unused allowances into 2015 or any subsequent periods is permitted.
- Where the tax life of the project ends after 1 January 2015, no carry-forward of unused allowances into periods after the end of the tax life is permitted.
The Finance Bill has also made a technical amendment to address an anomaly
whereby a clawback of property reliefs could cause an individual to be
classified as a high earner for the purposes of the High Earners Restriction.
Changes to self-assessment
Section 113 and Schedule 4 to the Bill contain wide ranging changes to self
assessment for income tax, corporation tax and capital gains tax.
“Chargeable persons” will now have to actually calculate and include their tax
liability/ refund due, as part of their return, in addition to the income/gains
and claims for the year. They will self assess the tax that is due and a
Revenue Assessment will only issue in future where Revenue disagree with the
calculation for some reason or if a paper return is submitted by 31 August.
Fixed penalties will apply for failure to calculate your tax liability.
Tax payment deadlines are unaffected by these changes.
The measures will apply to income tax returns for the tax year 2013 i.e. tax
returns due for filing by 31 October 2014. In the case of company tax returns
the measures are to apply where accounting periods start on or after 1 January
2013, where returns are due for filing from September 2014.
A number of other legislative amendments are included in the Bill relating to the self-assessment regime which will be of interest to members.
1. Expression of doubt
The Bill makes a number of changes to the Expression of Doubt facility:
- The level of information required to support an “expression of doubt” claim is increasing.
- The grounds for Revenue to refuse a claim have been broadened. Revenue will be able to reject a claim where they have issued “general guidelines” concerning the application of the law in similar circumstances.
In order for an expression of doubt claim to be valid, the return to which it relates must be filed on time.
2. The 4 year time limit for Revenue enquiries
The 4-year time limit for making enquiries will not apply in the following
- The return has not been filed
- Revenue are not satisfied with the sufficiency of the return or that it is a true disclosure
- Fraud or neglect arises
- S811 cases
In these situations, Revenue will be able to raise an enquiry “at any time”.
Revenue’s Code of Practice for Revenue Audit provides that a tax return can be
amended without penalty within a specified timeframe i.e. the taxpayer can make
a “self-correction”. It would appear from the legislation that this facility to
self-correct will not be available for a particular period where a taxpayer is
under any type of enquiry by Revenue for that period or that return.
4. Tax Appeals
A number of changes have been made to the legislation on tax appeals. These
arise as a result of the change of focus to “full” self-assessment by the
In addition, the timeframe for the payment of undisputed tax, interest and
collection costs has been reduced. These costs must now be paid within 30 days
from the issue of Revenue’s assessment i.e. the timeframe for making an appeal,
Previously, the payment simply had to be made before the appeal was heard. We
understand that this change follows the decision in a recent Supreme Court
Other new Measures not contained in the Budget
A number of other measures not contained in the Budget have been included in
the Finance Bill.
CAT Pay and File
Last years Finance Act amended the Pay & File deadline for CAT by bringing it forward from 31 October to 30 September in line with proposals last year to change the income tax deadline. Although the income tax deadline changes were reversed, the CAT Pay and File deadline remained at 30 September.
Section 102 of this Bill moves the CAT pay and file date back to 31 October, so that it once again coincides with income tax.
Relevant Contracts Tax
Section 21 deals with a number of matters in relation to the practical operation of the eRCT regime, for example:
- Clarification on the order for offset of RCT withheld against taxes owed by a subcontractor.
- Application of a penalty where a principal does not notify Revenue in advance of making a payment
- Requirement for the principal to obtain evidence of a subcontractor’s identity.
Following changes to the tax treatment of share based remuneration by
employers, sections 2 and 4 of this Bill now provide for employers to withhold
or sell sufficient shares to meet any USC or PAYE liability they may have on the share awards.
The scheme for tax relief on investment in films is amended to impose a penalty on the directors or secretary of the company where a compliance report (as is required under the existing legislation) is not filed with Revenue within 6 months after
completion of the film. A company will not be a qualifying company where any
amounts invested are repaid to the investors before Revenue have notified the
company in writing that a compliance report has been received – section 23.
Taxation of farmers
A number of changes have been made to the tax treatment of farmers. The key ones are as follows:
Section 19 of the Bill:
- A double deduction for increases in carbon tax on farm diesel
- Enhanced 50% stock relief for partners in registered farm partnerships, announced in the Budget (subject to EU State Aid rules)
Section 100 of the Bill
Loans on off-farms dwellings cannot be taken into account in calculating agricultural value for CAT purposes unless the loan is used for the purchase, improvement or repair of the house. The condition that an individual be resident in Ireland for 3 years after the gift or inheritance has also been removed.
Third level fees
In line with the increase in the Student Contribution Charge, as announced in
the Budget, tax relief on third level fees is being amended to increase the
amount ineligible for tax relief by €250 (from €2,000 to €2,250) for fulltime
courses and by €125 (from €1,000 to €1,125) for part-time courses.
Mergers where a company is dissolved without liquidation
A Provision has been made in section 50, to allow dissolution of a company
without going into liquidation and the subsequent transfer of its assets and
liabilities to the parent company without triggering a disposal of shares for
CGT purposes. This is on foot of a recent EU Directive measure.
Corporation Tax Group Relief – Extension to Companies with Non-EU/EEA Parent
Corporation tax group relief is extended to allow surrender of losses between
Irish resident companies, where both companies are members of the same 75%
group, and the group contains companies which are:
(a) resident in a Treaty country, or
(b) quoted on a recognised stock exchange.
Previously, the group companies had to be either an EU company or an EEA
company which was resident in a treaty state.
The amendment applies to accounting periods ending on or after 1 January 2012.
Relief for excess foreign tax on royalties
The computational rules for providing relief for foreign tax suffered on
royalty payments from abroad are amended. The measure is intended to assist, in
particular, the software sector.
Cash Pooling: Interest payments to non-treaty countries
This measure is intended to facilitate cash-pooling businesses in the corporate treasury sector. A new section 452A is introduced to allow certain companies to pay interest to connected persons who are resident in non-Treaty countries, without having all of the interest re-characterised as a distribution. The company will therefore be able to claim a deduction for a proportion of the interest.
This will only apply to a company:
- That advances money in the ordinary course of a trade carried on in the State which includes the lending of money, and
- For which any interest payable in relation to the money advanced is taken into account in computing the income of the trade.
Return of payments by non-resident companies
Currently, non-resident companies which are within the charge to Irish
corporation tax are required to make a return of certain payments made under
deduction of tax (excluding payments of yearly interest). The Bill introduces
an amendment to include payments of yearly interest in this return requirement.
It also provides that income tax deducted from such payments be treated as part
of the company’s corporation tax liability.
Foreign Dividends: 12.5% rate extended to more countries
The Bill extends the 12.5% rate on dividend income received by Irish-resident companies to dividends paid out of trading profits received from companies which are resident in territories which have ratified the OECD Convention on Mutual Assistance in Tax Matters. This applies to dividends received on or after 1 January 2012.
Section 110 is amended to:
- Include carbon offsets in the type of assets that a section 110 company can acquire,
- Amend the definition of “qualifying company” to include a date by which the notification must be submitted to Revenue, and
- Ensure that the Finance Act 2011 amendments, which disallowed deductions for interest payments in certain circumstances, do not apply to a company operating in the State through a branch or agency which is within the charge to corporation tax in respect of those interest payments.
Life assurance policies
A 3 percentage point increase in the rates of tax applying to a number of life
assurance policies and investment funds has been introduced from 1 January
2 important technical amendments have been made to the Islamic finance regime.
For any members dealing with encashment tax, a number of detailed changes have
been made to the administration and collection of this tax.
Unilateral credit relief has been extended to cover withholding tax suffered in
Other Financial services headlines
A number of measures in the Bill will be of interest to the financial services
- Section 28 – this exempts approved pension funds and PRSAs from the life assurance exit tax.
- Section 29 – this aligns the rate of exit tax on collective investment undertakings with that applying to entities subject to the “gross roll-up” regime i.e a rate of 30%.
- Section 30 – this updates the procedures whereby a non-resident individual can be exempt from exit tax on Irish funds.
- Section 31 – A technical amendment has been made in relation to the exchange of units in an Irish Exchange Traded Fund.
- Section 32 to 34 – provides for implementation of measure in the UCITS IV Directive which permits cross border mergers of UCITS.
Refunds under Ministerial Orders
VAT refunds made under Ministerial Orders, (.eg farm buildings acquired or
built by unregistered farmers), can now effectively be clawed back with
interest and penalties where the conditions of the Order are no longer
From 1 May 2012, where a person supplies construction services to a connected
person, the recipient of those services will be the one obliged to account for
the VAT arising on the transaction, under the reverse charge rules.
Revenue recently published their views in an eBrief on the definition of
“bread” for VAT purposes. A statutory definition has now been included in
Section 82 of the Finance Bill. For bread to qualify for zero rating, it must
contain not more than 12%, in aggregate, of its weight in fats and sugars and
not more than 10% of its weight, in aggregate, of dried fruit, vegetables,
herbs and spices.
Section 43 clarifies the direct tax implications of certain transactions in
Section 89 of the Bill provides for stamp duty exemption on the trading of
greenhouse gas emission allowances.
Introduction of self-assessment for stamp duty
It is proposed in section 93, to introduce a self-assessment system for stamp
duty. This will mean, for example:
- Returns must include a self-assessment of the duty due.
- Documents will no longer be submitted for adjudication. It will be possible to make an “expression of doubt” on the return.
- Penalties will apply for incorrect filing of returns.
No date has yet been set for the legislation to take effect.
9 separate stamp duty amendments have been made to extend the range of
exemptions for financial transactions and confirm the stamp duty treatment of
options over shares. Details are contained in section 88 of the Bill.
Stamp duty relief on mergers
Stamp duty exemption on mergers, including cross-border mergers is provided for
in the Bill in section 87.
Capital Acquisitions Tax
- The definition of “child” is amended to reflect that used in the Adoption Act 2010.
- Discretionary Trust Tax is extended to entities known as “foundations”.
- The “general powers of appointment” provisions are amended to disallow transfers whose sole or main purpose is the avoidance of CAT.
- Clarification is given that the 4-month grace period continues to apply to Discretionary Trust Tax.
- The provision dealing with the apportionment of benefits taken on the same day is abolished.
- The treatment of payments on account is amended.
Section 116 facilitates the submission of electronic financial statements in
iXBRL with corporation tax returns. A consultation process on the introduction
of iXBRL is currently underway with Revenue.
Holding of records
Section 104 confirms that records for companies which are in liquidation or
have been dissolved must be held for 6 years, in line with general rules.
Deliberately/carelessly making incorrect returns
The penalty provisions in section 1077E of the TCA now specifically include the
domicile levy and USC returns.
Under section 110 of the Bill, Revenue can now require a Statement of Affairs from
a taxpayer who has tax due and outstanding and has failed to discharge that
Section 111 gives the Collector General the power to require a person in
business to give the CG a security in relation to fiduciary taxes. The CG can
decide what is appropriate as a security in both amount and form. The CG may
require such a security where the person managed a business that has ceased to
trade with fiduciary tax due, or where current fiduciary taxes have not been
paid within 30 days of the due date.
Section 112 allows for Orders to be made on application to the District Court,
requiring production of documents or information by taxpayers. These powers
appear to be given in the context of certain tax offences which are under
investigation by Revenue. The Explanatory Memorandum to the Bill states that
they are “targeted at serious and complex Revenue offences attracting a penalty
of at least 5 years imprisonment”.
Confirmation of Budget Measures
The Bill confirms a number of measures announced in December’s Budget.
New SARP regime
Section 14 provides details of the new Special Assignee Relief Programme, aimed
at attracting key talent to Ireland. The relief will operate by exempting from
income tax 30% of the individual’s employment earnings between €75,000 and
€500,000. A number of conditions apply, the key ones being
- The employee must be assigned to work in Ireland from a country with which we have a double tax treaty and arrive for work in Ireland before 31 December 2014.
- They must work for the Irish employer for a minimum of a year and a maximum of 5 years.
- They must have been working for the assigning employer for 12 months prior to relocating in Ireland.
- They cannot have been resident in Ireland in the 5 years prior to their arrival.
FED deduction for overseas assignees
Further details have been provided in sections 12 and 13, on the new relief
being introduced for those individuals on assignment in Brazil, Russian, India,
China and South Africa (the BRICS countries). Relief will be available where an
individual spends stretches of at least 10 days working in any of the BRICS
countries and these stretches amount to at least 60 days in total in the year.
The relief operates by reducing the individual’s taxable Schedule D or Schedule
E income in proportion to their foreign workdays compared to their total
workdays. Relief is capped at €35,000 and the deduction will operate for 3
years ending in 2014.
Some consequential amendments to Section 825B, which deals with repayment of
tax on unremitted earnings for certain non-domiciled individuals have been made
as a result of the new relief.
Enhancements to the R&D regime
A number of amendments to the R&D tax credit regime were announced in
Budget 2012. Details of how these measures will operate, as well as some new
amendments to the R&D regime, are contained in sections 8 and 26 of the
(a) Volume basis
A full volume basis will apply to the first €100,000 of qualifying R&D
expenditure. The incremental basis will continue to apply to R&D
expenditure in excess of €100,000, as compared with expenditure in the 2003
(b) Outsourcing limit
Previously, outsourced R&D costs were eligible for relief if they did not
exceed 10% of total costs or 5% where work was outsourced to third level
institutions. These limits have been increased to allow the greater of the
existing percentage arrangement or €100,000.
(c) Use of credit to reward employees
Companies availing of the R&D tax credit now have the option of using a
portion of the credit to reward key employees who have been involved in the
research and development process
In order to qualify as a “key employee” the employee must not be a director of
the company or a connected company. He/she may not have a material interest in
the company (more than 5% share holding) and he/she must perform 75% or more of their duties in the conception or creation of new knowledge, products,
processes, methods and systems. 75% of the cost of their emoluments must
qualify as R&D expenditure.
The employee can claim a reduction against his/her taxable emoluments for the
portion of the credit surrendered to them by the company. Relief is only
available to the extent that the resulting income tax payable on his/her total
income for the year after applying the reduction, is not less than 23%.
If the relief surrendered cannot be used in a particular year it can be carried
forward to future tax years until it is exhausted or the individual ceases to
be an employee of that company. The employee will be a chargeable person for
the year they claim relief and will need to file a tax return to claim the
Key new measures
R&D activities carried on by others
Except for the outsourcing limits above expenditure on R&D will not qualify
for relief if the research and development activities are carried on by others,
even if the company manages or controls those activities. We know from members
that issues related to outsourcing have been a particular focus of Revenue in
Expenditure met directly or indirectly by grant assistance or similar from the
EU or EEA cannot be treated as qualifying expenditure for R&D and similar
provisions apply in relation to expenditure on buildings etc.
Where one company in a group carrying on R&D activities is dissolved and a
successor company continues to carry on the R&D, the successor may claim
any unused tax credits against corporation tax subject to certain conditions.
Similar provisions apply in relation to qualifying buildings or structures.
CGT relief for properties bought before 2014
The Budget proposed a new relief to incentivize the purchases of property between
7 December 2011 and 31 December 2013. If the property is retained for more than
7 years, any gain arising on its subsequent disposal will be exempt from CGT.
Start-up relief extended
Section 44 of the Bill extends the scheme of corporation tax relief for start-up companies under Section 486C TCA 1997, to include start-up companies which commence a trade in 2012, 2013 or 2014.
Relief available to companies who invest in renewable energy generation
projects has been extended until 31 December 2014.
USC exemption limit raised
Section 2 confirms the increased exemption threshold for liability to the USC
from €4,004 to €10,036 in 2012.
The USC moved to a cumulative basis from 1 January 2012 to minimise the
occurrence of under and overpayments.
As announced in the Budget, the rates of DIRT will increase by 3 percentage
points – to 30% for payments made annually or more frequently and 33% for
payments made less frequently. The increased rates apply to interest paid or credited on or after 1 January 2012.
Deposit interest from EU financial institutions will be taxed at 30%, but a
higher rate of 41% will apply where the return is filed late.
Deposit interest from non-EU financial institutions will be taxed at 30% where the
recipient is a standard rate taxpayer and files their return on time – a 41%
rate will apply to higher rate taxpayers and all taxpayers who do not file
their return on time.
Section 17 of the Bill confirms the Budget day announcement of an increase in
the annual imputed distribution applying to assets in an Approved Retirement
Fund (ARF) from 5% to 6% where the asset value is in excess of €2million. The
imputed distribution regime has also been extended to assets in vested PRSAs. 30
November will be the relevant date each year for determining whether the value
of the assets exceeds €2 million. Where the value is in excess of €2 million
the full value will be liable to the 6% rate not just the portion exceeding €2
million. Further details on how to determine the net imputed amount and how to
deal with situations where an individual has a number of ARFs or vested PRSAs
with different fund managers, are provided in the Bill.
- the Bill confirms that a 30% rate will apply to “post-death” distribution of an ARF to a child.
- Some flexibility in the timing of tax payments on pension benefits drawn down from certain schemes has been introduced. This is to “mitigate the harsher impacts” of the reduction last year in the Standard Fund Threshold (SFT) to €2.3 million in certain circumstances.
- The interaction with the SFT where a person has both a private and public sector pension are dealt with.
Mortgage Interest Relief
The Bill implements the changes announced in the Budget. First time buyers who
took out a loan between 1 January 2004 and 31 December 2008 will be entitled to
mortgage interest relief at an increased rate of 30%. Mortgage interest relief
will be available at 25% for first time buyers who purchase in 2012 and at 15%
for non first time buyers who purchase in 2012.
Taxation of illness/occupational benefit
The exemption from income tax for the first 36 days of illness or occupational
benefit has been abolished for such benefits paid from 1 January 2012 – section
7 of the Bill.
Increase in Health Insurance levy
As noted in the Budget an increased levy applies to all health insurance
renewals and new contracts entered into since 1 January – section 91.
The citizenship requirement is removed from the definition of “relevant
individual” for the purposes of the domicile levy (section 119). This amendment
will apply for 2012 and subsequent years.
A number of significant changes to CGT and CAT were announced in Budget 2012.
Stamp duty flat rate of 2% on commercial property
A single flat rate of stamp duty of 2% now applies to non-residential property
transactions (e.g. commercial and industrial property) – section 85 of the
The Finance Bill also confirms that consanguinity relief on non-residential
property will be abolished from 1 January 2015 – section 85.
Increase in CAT and CGT rate
Both the CGT and CAT rates were increased from 25% to 30%. These rates have
applied to disposals/gifts or inheritances taken since 6 December 2011. Section
54 of the Bill confirms the change in the CGT rate and section 95 confirms the
increase in the CAT rate.
CAT Threshold reductions
As announced on Budget day, the Group A tax-free threshold has been reduced
from €332,084 (after indexation) to €250,000. The Group B and Group C
thresholds have been rounded up to €33,500 and €16,750 respectively – section
Disposals of a business or farm on retirement
Retirement relief on disposals of farms and businesses by individuals aged over
55 has been modified. These modifications are aimed at incentivizing transfers
before owners reach the age of 66.
For intra-family transfers, full retirement relief will be available for
individuals aged between 55 and 66. Where the individual is age 66 or over ,
the value of the assets for the purposes of the relief will be capped at €3
For other transfers, the current limit of €750,000 remains unchanged, where the
individual is aged between 55 and 66. Where an individual is age 66 or over,
the limit is reduced to €500,000.
Transitional provisions apply for those who will be 66 before 31 December 2013.
Section 75 of the Bill confirms the Budget increase in the standard rate of VAT
from 21% to 23%.
9% VAT rate on open farms admissions
Entry to open farms is now subject to VAT at 9% and the supply of district heating is liable at 13.5%.