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34 2009

National Asset Management Agency Act 2009

PART 13

Miscellaneous

Avoidance of certain transactions.

211 .— (1) Where, on the application of NAMA or a NAMA group entity, it is shown to the satisfaction of the Court that—

(a) an asset of a debtor or associated debtor, guarantor or surety was disposed of, and

(b) the effect of the disposition was to defeat, delay or hinder the acquisition by NAMA or a NAMA group entity of an eligible bank asset, or to impair the value of an eligible bank asset or any rights (including a right to damages or any other remedy, a right to enforce a judgment and a priority) that NAMA or the NAMA group entity would have acquired or increased a liability or obligation but for that disposition,

the Court may declare the disposition to be void if in the Court’s opinion it is just and equitable to do so.

(2) In deciding whether it is just and equitable to make a declaration under subsection (1), the Court shall have regard to the rights of any person who has in good faith and for value acquired an interest in the asset the subject of the disposition.

(3) Nothing in this section affects the operation of section 14 of the Conveyancing Act 1634 or section 74(4)(a) of the Land and Conveyancing Law Reform Act 2009 .

Provision of tax information to NAMA.

212 .— (1) In this section “ the Capital Gains Tax Acts ” and “ the Corporation Tax Acts ” have the respective meanings given by section 1(2) of the Taxes Consolidation Act 1997 .

(2) Where shares in a company are acquired by—

(a) NAMA,

(b) a company referred to in section 616(1)(g) of the Taxes Consolidation Act 1997 , or

(c) a NAMA group entity,

and, as a consequence of the acquisition, the provisions of the Capital Gains Tax Acts, the Corporation Tax Acts or the Stamp Duties Consolidation Act 1999 as amended or extended impose a charge to tax or duty on the company by virtue of a clawback of a relief, the person from whom the shares are acquired shall inform NAMA, the acquiring company or the NAMA group entity of the charge and the amount of tax or duty due.

NAMA, etc., not to make payments in certain circumstances.

213 .— (1) In this section—

“ the Acts ” has the meaning given by section 1095 of the Taxes Consolidation Act 1997 ;

“ Collector-General ” has the meaning given by section 2(1) of the Taxes Consolidation Act 1997 ;

“ outstanding tax ”, in relation to a relevant person, means any obligation on the relevant person arising under the Acts in relation to the payment or remittance of any taxes, interest or penalties required to be paid or remitted under the Acts;

“ relevant person ” means a debtor, associated debtor, guarantor, surety or chargor and includes a connected person (within the meaning given by section 10 of the Taxes Consolidation Act 1997 ) in relation to a debtor, associated debtor, guarantor, surety or chargor.

(2) This section applies where in the exercise of any of its functions under this Act, NAMA or a NAMA group entity is obliged to pay an amount of money to a relevant person.

(3) Where this section applies, NAMA or the NAMA group entity concerned shall not make any payment to a relevant person until—

(a) the relevant person delivers to NAMA, or to a person authorised by NAMA, a valid tax clearance certificate issued to the relevant person by the Collector-General, or

(b) the Collector-General has confirmed to NAMA, following a request from NAMA, that it has no objection to the making of a payment to the relevant person.

(4) Where a relevant person is unable to produce a valid tax clearance certificate to NAMA because of any outstanding tax and NAMA or a NAMA group entity is obliged to pay an amount of money to the relevant person, the relevant person may issue a notice in writing to NAMA or the NAMA group entity directing it to forward to the Collector-General—

(a) where the amount of money is greater than the outstanding tax, an amount of money equal to the amount of the outstanding tax, or

(b) where the amount of money is equal to or less than the outstanding tax, that amount of money.

(5) On receipt by the Collector-General of an amount of money paid by NAMA or a NAMA group entity pursuant to subsection (4), the Collector-General shall notify the relevant person.

NAMA exempt from certain taxes.

214 .— Income and gains arising to NAMA shall be exempt from income tax, corporation tax and capital gains tax.

Disapplication of certain provisions of Competition Act 2002 and Credit Institutions (Financial Support) Act 2008.

215 .— (1) Parts 2 and 3 of the Competition Act 2002 do not apply with respect to the acquisition of bank assets under this Act.

(2) Section 7 of the Credit Institutions (Financial Support) Act 2008 does not apply with respect to the acquisition of bank assets under this Act.

NAMA, etc., not to be taken to be carrying on banking business, etc.

216 .— (1) Except pursuant to the provisions mentioned or referred to in subsection (2), neither NAMA nor a NAMA group entity shall be taken to be providing a service or carrying on an activity which would require it to be authorised or regulated by the Central Bank.

(2) The provisions referred to in subsection (1) are:

(a) Irish market abuse law, as defined in section 29(1) of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ;

(b) Irish prospectus law, as defined in section 38(1) of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ;

(c) transparency (regulated markets) law, as defined in section 19(1) of the Investment Funds, Companies and Miscellaneous Provisions Act 2006 ;

(d) regulations made under section 6A of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007 if in those regulations the Minister declares that those regulations apply for the purposes of this section;

(e) any other provision that the Minister by regulation from time to time declares to apply to NAMA or a NAMA group entity.

Application of laws in relation to netting agreements, etc.

217 .— Nothing in this Act affects the operation of—

(a) the Netting of Financial Contracts Act 1995 ,

(b) the European Communities (Settlement Finality) Regulations 2008 (S.I. No. 88 of 2008),

(c) the European Communities (Financial Collateral Arrangements) Regulations 2004 (S.I. No. 1 of 2004), or

(d) regulation 30 of the European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2004 (S.I. No. 198 of 2004),

in relation to an agreement to which a participating institution is a party.

Certain bank assets not invalidated.

218 .— (1) An acquired bank asset is not invalidated or rendered void or voidable as against NAMA or a NAMA group entity or their successors in title—

(a) by section 60, 99, 100, 101, 111, 286 or 288 of the Companies Act 1963 ,

(b) by section 29, 31 or 139 of the Companies Act 1990 ,

(c) on the grounds that it was ultra vires,

(d) by reason that the provider may not have been able to pay its debts as they fell due at the time the security was given or that the directors of that provider ceased to have the power to create that security,

(e) by reason that the grant of the security may not have been duly authorised by the grantor or may not have been for the benefit of the grantor, or

(f) by reason that the consent of a party required for the creation of the security may not have been obtained.

(2) Notwithstanding section 127(4) of the Stamp Duties Consolidation Act 1999 , a charge or security that secures an acquired bank asset that is required to be stamped but has not been stamped or is insufficiently stamped is not rendered inadmissible in evidence or unenforceable only by reason that it is unstamped or insufficiently stamped.

(3) Subsection (1) shall not affect the existing priority of any other charge.

Nothing done under Act to be reorganisation or winding-up measure.

219 .— Nothing done under this Act constitutes a reorganisation or winding-up measure for the purposes of—

(a) the European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2004 (S.I. No. 198 of 2004), or

(b) the European Communities (Reorganisation and Winding-Up of Insurance Undertakings) Regulations 2003 (S.I. No. 168 of 2003).

Operation of certain provisions of Land Registration Rules 1972 to 2008.

220 .— (1) Notwithstanding anything in the Land Registration Rules 1972 to 2008, an officer of NAMA, an adviser acting on behalf of NAMA or a person nominated in writing by the Chief Executive Officer of NAMA may inspect and take copies of any document filed in the Land Registry on a dealing or transaction with the property of any person.

(2) This section applies only to documents relevant to an acquired bank asset.

(3) A person who seeks to inspect or take a copy of a document pursuant to subsection (1) shall produce to the Property Registration Authority evidence that he or she is a person authorised under that subsection to do so.

Offence of lobbying NAMA, etc.

221 .— (1) Subject to subsections (3) and (4), if a person communicates, on behalf of another person, with NAMA, a NAMA group entity or a person providing services or advice to NAMA or a NAMA group entity with the intention of influencing the making of a decision in relation to the performance of the functions of NAMA or the NAMA group entity, the person commits an offence.

(2) Without prejudice to the generality of subsection (1), a reference in that subsection to a decision relating to the performance of the functions of NAMA includes a decision relating to—

(a) the lending of money,

(b) the initiation of legal proceedings,

(c) legal proceedings in being,

(d) the engagement of the services of an expert adviser or other service provider,

(e) any other matter that could give rise to an advantage or benefit to a person other than NAMA,

(f) a tender, or

(g) the purchase or sale of property.

(3) It is not an offence pursuant to subsection (1) if the communication concerned—

(a) is made public at the time of the communication,

(b) is made without an intention to benefit, or confer an advantage on, any specific person, or

(c) is made in the public interest.

(4) It is not an offence pursuant to subsection (1) if the person who makes the communication concerned—

(a) is acting in his or her professional capacity or in the course of his or her employment, and

(b) does so in that capacity.

(5) A person who believes that he or she has been communicated with in contravention of subsection (1) shall, as soon as may be, report—

(a) that the communication was made,

(b) the details of the communication made, and

(c) the name of the person who communicated with him or her,

to a member of the Garda Síochána.

(6) A person who fails to comply with subsection (5) commits an offence.

(7) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding €1,000 or imprisonment for a term not exceeding 6 months or both.

Protection from civil liability of persons who report certain misconduct.

222 .— (1) Where a person who is an employee of a participating institution or an officer of NAMA or a director or employee of a NAMA group entity communicates his or her opinion, whether in writing or otherwise, to a member of the Garda Síochána or a member of the Board that—

(a) an offence under this Act or any other enactment has been or is being committed,

(b) any provision of this Act or any other enactment or rule of law has been or is being contravened, or

(c) there has been other serious wrongdoing in relation to NAMA or a NAMA group entity,

then, unless the person acts in bad faith, he or she shall not be regarded as having committed any breach of duty towards any other person, and no person shall have a cause of action against the first-mentioned person in respect of that communication.

(2) Where a person who is an employee of a participating institution, an officer of NAMA or a director or employee of a NAMA group entity communicates his or her opinion, whether in writing or otherwise, to the Minister that a direction given by the Minister under this Act has been or is being contravened, then, unless the person acts in bad faith, he or she shall not be regarded as having committed any breach of duty towards any other person, and no person shall have a cause of action against the first-mentioned person in respect of that communication.

(3) This section applies to a communication—

(a) that would, but for this section, constitute a breach of duty by the person who made it, or

(b) in respect of which another person would, but for this section, have a cause of action against the person who made it.

Prohibition on penalisation.

223 .— (1) In this section and in Schedule 2 :

“employee” means—

(a) an employee of a participating institution,

(b) an officer of NAMA, or

(c) an employee of a NAMA group entity;

“ employer ” means—

(a) a participating institution,

(b) in relation to an officer of NAMA, both NAMA and the NTMA, or

(c) a NAMA group entity;

“ penalisation ” includes any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and in particular includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(2) To avoid doubt, this section and Schedule 2 have effect in relation to a person who is an officer of NAMA as if both NAMA and the NTMA were employers of the person.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act is not being complied with,

(b) giving evidence in any proceedings under this Act, or

(c) giving notice of his or her intention to do any of the things referred to in paragraph (a) or (b).

(4) Schedule 2 has effect in relation to an alleged contravention of subsection (3) and matters consequential on such a contravention.

(5) If a penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee in respect of that penalisation both under Schedule 2 and under those Acts.

False statements.

224 .— (1) A person who states to a member of the Garda Síochána or a member of the Board that—

(a) an offence under this Act or any other enactment has been or is being committed,

(b) a provision of this Act, a provision of any other enactment or any rule of law has been or is being contravened, or

(c) there has been serious wrongdoing by any person in relation to NAMA or a NAMA group entity,

knowing the statement to be false commits an offence.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.

Surcharge on participating institutions.

225 .— (1) In this section:

“ accounting period ” shall be construed in accordance with section 27 of the Taxes Consolidation Act 1997 ;

“ surcharge ” means the tax referred to in subsection (3);

“ underlying loss ” means the amount, if any, by which the aggregate of losses incurred by NAMA (including NAMA group entities) exceeds the aggregate of the profits arising to NAMA (including those entities) in the period from the date of its establishment to the date referred to in the direction under subsection (2) or the date of the occurrence of the event so referred to.

(2) If—

(a) the Minister decides under section 227 (3) (b) that the continuation of NAMA is unnecessary having regard to the purposes of this Act, the Minister shall, or

(b) (i) 10 years have elapsed since the establishment of NAMA, or

(ii) the Minister proposes to publish or has published a Bill for NAMA’s dissolution, restructuring or material alteration,

the Minister may,

direct NAMA to prepare a report and accounts as at a date specified by the Minister or as at the date of the occurrence of an event so specified—

(I) showing the aggregate profits and losses arising to and incurred by NAMA (including NAMA group entities), respectively, from its activities in the period from the date of its establishment to the date or the occurrence of the event so specified, and

(II) duly certified by the Comptroller and Auditor General,

and NAMA shall send such report and accounts so certified to the Minister.

(3) Where—

(a) the report and accounts sent to the Minister under subsection (2) disclose an underlying loss has been incurred by NAMA (including NAMA group entities), and

(b) the Minister is of the opinion that such underlying loss is unlikely to be otherwise made good,

then the Minister may cause—

(i) a provision to be included in a Money Bill, or

(ii) a provision to like effect to be included in any other Bill initiated in Dáil Éireann,

providing for the imposition of a special tax by way of a surcharge on participating institutions in accordance with subsection (4).

(4) The aggregate tax by way of a surcharge to be imposed on participating institutions on their respective profits (within the meaning of section 4 of the Taxes Consolidation Act, 1997 ) if any—

(a) shall not exceed the amount of the underlying loss, if any, incurred by NAMA (including NAMA group entities),

(b) shall be apportioned to each participating institution on the basis of the book value of the bank assets acquired from each participating institution concerned as a proportion of the total book value of the bank assets acquired from all of the participating institutions,

and the surcharge so apportioned shall be imposed on each institution accordingly and paid by each of them over such period and at such times as provided for by the subsequent Act giving effect to this section and to which subsection (3) relates.

(5) Any surcharge due to be paid by a participating institution in accordance with subsection (4) may not exceed 100 per cent of the corporation tax, if any, due and payable by that participating institution for the accounting period or periods as the case may be, falling within the period referred to in that subsection.

(6) No surcharge shall become payable until either—

(a) 10 years after the passing of this Act, or

(b) NAMA is dissolved or restructured, or there is a material alteration of NAMA’s functions,

whichever last occurs.