Taxation – Finance Bill 2012 Published

Finance Bill 2012 has been published and the main changes outlined in the Budget have been confirmed. The following is a summary.

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.

Other amendments
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 situations:

• 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”.

3. Self-correction

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 taxpayer.

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 case.

Other new Measures not contained in the Budget
A number of other measures not contained in the Budget have been included in today’s 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.

Share-based pay
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.

Film investments

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
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.

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.

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 2012.

VAT

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 satisfied.

Construction services
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.

Bread
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.

Emissions allowances
Section 43 clarifies the direct tax implications of certain transactions in emissions allowances.
Section 89 of the Bill provides for stamp duty exemption on the trading of greenhouse gas emission allowances.

Stamp duty
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.
Financial transactions
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.

iXBRL
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.

Revenue powers
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 tax.
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 Bill.
Budget measures
(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 base year.
(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 relief.

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 recent times.
Grant assistance
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.
Group companies
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.

Renewable energy
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.

Deposit Interest
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.

Retirement benefits
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.
In addition:

• 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.

Domicile Levy
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.

Capital Taxes
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 Bill.
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 95.

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 million.
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.

VAT rate
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%.