First Previous (CHAPTER 6 Other sanctions) Next (PART 49 Commencement, Repeals, Transitional Provisions, Etc.)

39 1997

TAXES CONSOLIDATION ACT, 1997

PART 48

Miscellaneous and Supplemental

Charge and deduction of income tax not charged or deducted before passing of annual Act.

[ITA67 s8 and s93(3); FA69 s 29; FA72 s12 and Sch3; CTA76 s140(1) and Sch2 PtI par2]

1087. —(1) Where in any year of assessment any payments have been made, before the passing of an Act increasing the rate of income tax for that year, on account of any interest, dividends or other annual profits or gains from which under the Tax Acts income tax is required to be deducted and tax has not been charged on or deducted from those payments, or has not been charged on or deducted from those payments at the increased rate of tax for that year—

(a) the amount not so charged or deducted shall be charged under Case IV of Schedule D in respect of those payments as profits or gains not charged by virtue of any other Schedule, and

(b) the agents entrusted with the payment of the interest, dividends or annual profits or gains shall furnish to the Revenue Commissioners a list containing—

(i) the names and addresses of the persons to whom payments have been made, and

(ii) the amount of those payments,

on a requisition made by the Revenue Commissioners in that behalf.

(2) Any person liable to pay any rent, interest or annuity, or to make any other annual payment, including a payment to which section 104 applies (not being a payment of rent, interest or annuity)—

(a) shall be authorised—

(i) to make any deduction on account of income tax for any year of assessment which that person has failed to make before the passing of an Act increasing the rate of tax for that year, or

(ii) to make up any deficiency in any such deduction which has been so made,

on the occasion of the next payment of the rent, interest or annuity, or the making of the other annual payment, including a payment to which section 104 applies (not being a payment of rent, interest or annuity), after the passing of the Act so increasing the rate of tax, in addition to any other deduction which that person may be by law authorised to make, and

(b) shall also be entitled, if there is no future payment from which the deduction may be made, to recover the sum which might have been deducted as if it were a debt due from the person as against whom the deduction could originally have been made if the Act increasing the rate of tax for the year had been in force.

(3) This section shall not apply to a payment which is a distribution within the meaning of Chapter 2 of Part 6 .

Restriction on deductions in computing profits.

[ITA67 s535; FA74 s51]

1088. —(1) In determining the amount of profits or gains for the purpose of income tax—

(a) no deductions shall be made other than those expressly provided for by the Income Tax Acts, and

(b) no deduction shall be made on account of any annuity or other annual payment (other than interest) to be paid out of such profits or gains in regard that a proportionate part of the income tax is allowed to be deducted on making any such payment.

(2) In determining the amount of profits or gains from any property described in the Income Tax Acts or from any office or employment of profit, no deduction shall be made on account of diminution of capital employed, or of loss sustained, in any trade or in any profession or employment.

Status of interest on certain unpaid taxes and duties.

[FA73 s35; FA75 s27; FA76 s29]

1089. —(1) Interest payable under—

(a) section 15 of the Stamp Act, 1891, and subsections (2) and (3) of section 69 of the Finance Act, 1973 ,

(b) section 21 of the Value-Added Tax Act, 1972 , or

(c) section 531 (9) or 991 ,

shall be payable without any deduction of income tax and shall not be allowed in computing any income, profits or losses for any of the purposes of the Income Tax Acts.

(2) Interest payable under section 18 of the Wealth Tax Act, 1975 , or section 41 of the Capital Acquisitions Tax Act, 1976 , shall not be allowed in computing any income, profits or losses for any of the purposes of the Tax Acts.

Income tax assessment to be conclusive of total income.

[ITA67 s534]

1090. —Where an assessment has become final and conclusive for the purposes of income tax for any year of assessment, that assessment shall also be final and conclusive in estimating total income from all sources for the purposes of the Income Tax Acts, and no allowance or adjustment of liability, on the ground of diminution of income or loss, shall be taken into account in estimating such total income from all sources for such purposes unless that allowance or adjustment has been previously made on an application under the special provisions of the Income Tax Acts relating to that allowance or adjustment.

Annexation of statements to interest warrants, etc.

[ITA67 s458; CTA76 s140(1) and Sch2 PtI par25]

1091. —(1) In this section, “company” means a company within the meaning of the Companies Act, 1963, and a company created by letters patent or by or in pursuance of any statute.

(2) Every warrant, cheque or other order sent or delivered for the purpose of paying any interest which is not a distribution within the meaning of the Corporation Tax Acts by a company which is entitled to deduct income tax from such interest shall have annexed to it, or be accompanied by, a statement in writing showing—

(a) the gross amount which, after deduction of the income tax appropriate to such interest, corresponds to the net amount actually paid,

(b) the rate and amount of income tax appropriate to such gross amount, and

(c) the net amount actually paid.

(3) A company which fails to comply with subsection (2) shall incur a penalty of £10 in respect of each offence but the aggregate amount of the penalties imposed under this section on any company in respect of offences connected with any one payment or distribution of interest shall not exceed £100.

Disclosure of certain information to rating authorities, etc.

[FA78 s47; FA80 s89]

1092. —(1) This section shall apply to any charge imposed on public moneys, being a charge for the purposes of relief (in this section referred to as “the relief”) under the Rates on Agricultural Land (Relief) Acts, 1939 to 1980, and any subsequent enactment together with which those Acts may be cited.

(2) Where a charge to which this section applies is to be made, the Revenue Commissioners or any officer authorised by them for that purpose may, in connection with the establishment of title to the relief of a person (in this subsection referred to as “the claimant”), notwithstanding any obligation as to secrecy imposed on them under the Income Tax Acts or under any other enactment, disclose to any person specified in column (1) of the Table to this section information of the kind specified in column (2) of that Table, being information in respect of the claimant which is required by that person when considering the claimant's title to the relief.

(3) In the Table to this section, “occupation” has the same meaning as in section 654 , and “rating authority” has the same meaning as in section 898 .

TABLE

(1)

(2)

Persons to whom information to be given

Information to be given

The secretary or clerk, or a person acting as such, to a rating authority or any officer of the Minister for the Environment and Local Government authorised by that Minister for the purpose of this section.

Information relating to the occupation of land by the claimant and the rateable valuation of such land.

Disclosure of information to Ombudsman.

[FA81 s52]

1093. —Any obligation to maintain secrecy or other restriction on the disclosure or production of information (including documents) obtained by or furnished to the Revenue Commissioners, or any person on their behalf, for taxation purposes, shall not apply to the disclosure or production of information (including documents) to the Ombudsman for the purposes of an examination or investigation by the Ombudsman under the Ombudsman Act, 1980, of any action (within the meaning of that Act) taken by or on behalf of the Revenue Commissioners, being such an action taken in the performance of administrative functions in respect of any tax or duty under the care and management of the Revenue Commissioners.

Tax clearance certificates in relation to certain licences.

[FA92 s242; FA93 s140; FA97 s160(1)]

1094. —(1) In this section—

the Acts” means—

(a) the Tax Acts,

(b) the Capital Gains Tax Acts, and

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

and any instruments made thereunder;

beneficial holder of a licence” means the person who conducts the activities under the licence and, in relation to a licence issued under the Auctioneers and House Agents Act, 1947, includes the authorised individual referred to in section 8(4), or the nominated individual referred to in section 9(1), of that Act;

licence” means a licence or authorisation, as the case may be, of the kind referred to in—

(a) the proviso (inserted by section 156 of the Finance Act, 1992 ) to section 49(1) of the Finance (1909-1910) Act, 1910,

(b) the further proviso (inserted by section 79 (1) of the Finance Act, 1993 ) to section 49(1) of the Finance (1909-1910) Act, 1910,

(c) the proviso (inserted by section 79 (2) of the Finance Act, 1993 ) to section 7 (3) of the Betting Act, 1931 ,

(d) the proviso (inserted by section 79 (3) of the Finance Act, 1993 ) to section 19 of the Gaming and Lotteries Act, 1956 ,

(e) the proviso (inserted by section 79 (4) (a) of the Finance Act, 1993 ) to subsection (1) of section 8 of the Auctioneers and House Agents Act, 1947 ,

(f) the proviso (inserted by section 79 (4) (b) of the Finance Act, 1993 ) to subsection (1) of section 9 of the Auctioneers and House Agents Act, 1947 (an auction permit under that section being deemed for the purposes of this section to be a licence),

(g) the proviso (inserted by section 79 (4) (c) of the Finance Act, 1993 ) to subsection (1) of section 10 of the Auctioneers and House Agents Act, 1947 ,

(h) the proviso (inserted by section 79 (5) of the Finance Act, 1993 ) to paragraph 12(12) of the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 (S.I. No. 307 of 1975),

(i) the proviso (inserted by section 79 (6) of the Finance Act, 1993 ) to paragraph (b) of subsection (3) of section 45 of the Finance Act, 1989 , and

(j) section 93, 116 or 144 of the Consumer Credit Act, 1995;

specified date” means the date of commencement of a licence sought to be granted under any of the provisions referred to in paragraphs (a) to (i) of the definition of “licence” as specified for the purposes of a tax clearance certificate under subsection (2);

tax clearance certificate” shall be construed in accordance with subsection (2).

(2) Subject to subsection (3), the Collector-General shall, on an application to him or her by the person who will be the beneficial holder of a licence due to commence on a specified date, issue a certificate (in this section referred to as a “tax clearance certificate”) for the purposes of the grant of a licence if—

(a) that person and, in respect of the period of that person's membership, any partnership of which that person is or was a partner,

(b) in a case where that person is a partnership, each partner,

(c) in a case where that person is a company, each person who is either the beneficial owner of, or able directly or indirectly to control, more than 50 per cent of the ordinary share capital of the company,

has or have complied with all the obligations imposed on that person or on them by the Acts in relation to—

(i) the payment or remittance of the taxes, interest and penalties required to be paid or remitted under the Acts, and

(ii) the delivery of returns.

(3) Subject to subsection (4), where a person (in this section referred to as “the first-mentioned person”) will be the beneficial holder of a licence due to commence on a specified date and another person (in this section referred to as “the second-mentioned person”) was the beneficial holder of the licence at any time during the year ending on that date, and—

(a) the second-mentioned person is a company connected (within the meaning of section 10 as it applies for the purposes of the Tax Acts) with the first-mentioned person or would have been such a company but for the fact that the company has been wound up or dissolved without being wound up,

(b) the second-mentioned person is a company and the first-mentioned person is a partnership in which—

(i) a partner is or was able, or

(ii) where more than one partner is a shareholder, those partners together are or were able,

directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company, or

(c) the second-mentioned person is a partnership and the first-mentioned person is a company in which—

(i) a partner is or was able, or

(ii) where more than one partner is a shareholder, those partners together are or were able,

directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company,

then, a tax clearance certificate shall not be issued by the Collector-General under subsection (2) unless, in relation to the activities conducted under the licence, the second-mentioned person has complied with the second-mentioned person's obligations under the Acts as specified in subsection (2).

(4) Subsection (3) shall not apply to a transfer of a licence effected before the 24th day of April, 1992, or to such transfer effected after that date where a contract for the sale or lease of the premises to which the licence relates was signed before that date.

(5) An application for a tax clearance certificate under this section shall be made to the Collector-General in a form prescribed by the Revenue Commissioners and shall specify the commencement date of the licence to which the application relates and, where that licence is for a period of less than one year, the licensing period.

(6) Where an application for a tax clearance certificate under this section is refused by the Collector-General, he or she shall as soon as is practicable communicate in writing such refusal and the grounds for such refusal to the person concerned.

(7) (a) Where an application under this section to the Collector-General for a tax clearance certificate is refused, the person aggrieved by the refusal may, by notice in writing given to the Collector-General within 30 days of the refusal, apply to have such person's application heard and determined by the Appeal Commissioners; but no right of appeal shall exist by virtue of this section in relation to any amount of tax or interest due under the Acts.

(b) A notice under paragraph (a) shall be valid only if—

(i) that notice specifies—

(I) the matter or matters with which the person is aggrieved, and

(II) the grounds in detail of the person's appeal as respects each such matter,

and

(ii) any amount under the Acts which is due to be remitted or paid, and which is not in dispute, is duly remitted or paid.

(c) The Appeal Commissioners shall hear and determine an appeal made to them under this subsection as if it were an appeal against an assessment to income tax and, subject to paragraph (d), the provisions of the Income Tax Acts relating to such an appeal (including the provisions relating to the rehearing of an appeal and to the statement of a case for the opinion of the High Court on a point of law) shall apply accordingly with any necessary modifications.

(d) On the hearing of an appeal made under this subsection, the Appeal Commissioners shall have regard to all matters to which the Collector-General is required to have regard under this section.

Tax clearance certificates in relation to public sector contracts.

[FA95 s177(1) to (6); FA96 s132(1) and Sch5 PtI par19]

1095. —(1) In this section—

the Acts” means—

(a) the Tax Acts,

(b) the Capital Gains Tax Acts, and

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

and any instruments made thereunder;

the scheme” means a scheme of the Department of Finance for the time being in force requiring persons to show, by means of tax clearance certificates, compliance with the obligations imposed by the Acts in relation to the matters specified in subsection (2) before the award to them of contracts that are specified in a circular of the Department of Finance entitled “Tax Clearance Procedures— Public Sector Contracts”, numbered F 49/24/84 and issued on the 30th day of July, 1991, or any such circular amending or replacing that circular;

tax clearance certificate” shall be construed in accordance with subsection (2).

(2) Subject to this section, where a person who is in compliance with the obligations imposed on the person by the Acts in relation to—

(a) the payment or remittance of any taxes, interest or penalties required to be paid or remitted under the Acts to the Revenue Commissioners, and

(b) the delivery of any returns required to be made under the Acts,

applies to the Collector-General in that behalf for the purposes of the scheme, the Collector-General shall issue to the person a certificate (in this section referred to as a “tax clearance certificate”) stating that the person is in compliance with those obligations.

(3) A tax clearance certificate shall not be issued to a person unless—

(a) the person and, in respect of the period of the person's membership, any partnership of which the person is or was a member,

(b) in a case where the person is a partnership, each person who is a member of the partnership, and

(c) in a case where the person is a company, each person who is either the beneficial owner of, or able directly or indirectly to control, more than 50 per cent of the ordinary share capital of the company,

is in compliance with the obligations imposed on the person and each other person (including any partnership) by the Acts in relation to the matters specified in paragraphs (a) and (b) of subsection (2).

(4) Where a person (in this subsection referred to as “the first-mentioned person”) applies for a tax clearance certificate in accordance with subsection (2) and the business activity to which the application relates was previously carried on by, or was previously carried on as part of a business activity carried on by, another person (in this subsection referred to as “the second-mentioned person”) and—

(a) the second-mentioned person is a company which is connected (within the meaning of section 10 as it applies for the purposes of the Tax Acts) with the first-mentioned person or would have been such a company but for the fact that the company has been wound up or dissolved without being wound up,

(b) the second-mentioned person is a company and the first-mentioned person is a partnership and—

(i) a member of the partnership is or was able, or

(ii) where more than one such member is a shareholder of the company, those members acting together are or were able,

directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company, or

(c) the second-mentioned person is a partnership and the first-mentioned person is a company and—

(i) a member of the partnership is or was able, or

(ii) where more than one such member is a shareholder of the company, those members acting together are or were able,

directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company,

then, a tax clearance certificate shall not be issued to the first-mentioned person unless, in relation to the business activity to which the application relates, the second-mentioned person is in compliance with the obligations imposed on that person by the Acts in relation to the matters specified in paragraphs (a) and (b) of subsection (2).

(5) Subsection (4) shall not apply to a business the transfer of which was effected before the 9th day of May, 1995, or a business the transfer of which is or was effected after that date if a contract for the transfer was made before that date.

(6) Subsections (5), (6) and (7) of section 1094 shall, with any necessary modifications, apply to an application for a tax clearance certificate under this section as they apply to an application for a tax clearance certificate under that section.

(7) A tax clearance certificate shall be valid for the period specified in the certificate.

Assessment of Electricity Supply Board.

[ITA67 s545(1)]

1096. —For the purpose of determining liability for assessment to and payment of income tax, the Electricity Supply Board is not and never was the State or a branch or department of the Government of the State.