Ireland has for many years attracted a disproportionately large amount of inward investment. This trend did not change during the recent economic downturn. In fact, paradoxically, the economic crisis enhanced Ireland's attractiveness as an investment location. IBM's 2019 Global Location Trends Report (the most recent version available) states that 'Ireland . . . recorded [its] highest level of inward investment in the last 10 years'. The Report has ranked Ireland as the second-best destination globally for jobs by quality and value of investment ahead of other leading locations including Lithuania, Switzerland and Hong Kong. Significant gains in inbound investment have been achieved in recent years. The 2019 Report shows that only Singapore ranks ahead of Ireland in this regard.
Ireland has boasted significant growth in job creation from foreign direct investment in Europe. When looking at jobs created from foreign direct investment relative to population size, Ireland ranks second, with growth of more than 25 per cent compared to the previous year. In terms of manufacturing and services, Ireland is the top ranking Western European country.
The government and opposition parties have consistently reaffirmed their commitment to maintaining the corporation tax rate of 12.5 per cent amidst the changing international tax environment (most recently in the 2020 Budget announcement on 8 October 2019), which is a cornerstone of Ireland's inward investment strategy.
II COMMON FORMS OF BUSINESS ORGANISATION AND THEIR TAX TREATMENT
There are various forms of business organisation to choose from in Ireland. Some involve the creation of a separate legal person, while others do not.
Only bodies corporate are subject to Irish corporation tax. This would include all limited or unlimited companies and registered societies. All income of an Irish-resident company or other body corporate, wherever it arises, will normally be liable to Irish corporation tax.
Entities without identities separate from those of their members are not subject to corporation tax, and include sole traders, partnerships and unincorporated associations. In general, income tax is charged on the profits of a person carrying on a trade or profession. There are special tax rules for partnerships under which each partner is taxed separately on his or her share of partnership profits.
The private limited company is the most common form of Irish company. Its principal attraction is that shareholders' liability for the company's debts is limited to the amount they agreed to pay for their shares. Under the Companies Act 2014, there are two types of private limited company – the company limited by shares (ltd) and the designated activity company. Public limited companies are generally used where there is a larger dispersed ownership of the company or where shares will be traded on a stock exchange. There are more onerous disclosure requirements (particularly in relation to financial disclosures) on public companies than on private companies, and they are subject to a minimum capitalisation requirement.
In an unlimited company, the liability of the members for the company's debts is not restricted. These types of company are not particularly common. Unlimited companies previously had certain advantages over limited companies as they enjoyed fewer disclosure requirements and greater flexibility in terms of returning share capital. However, the Companies (Accounting) Act 2017 amended the position somewhat with the effect that the majority of unlimited companies are now obliged to file financial statements in the Companies Registration Office.
Non-corporate forms of business organisation are often used in Ireland either by sole traders or by groups of individuals who do not wish to, or are prohibited from, forming a body corporate. Partnerships are used by persons carrying on a business together with a view to profit, and are not registered or incorporated entities. Limited partnerships, where some of the members have limited liability for the debts of the partnership, can be created, but these do not constitute a legal entity separate to their members.
III DIRECT TAXATION OF BUSINESSES
The Irish tax system is based on the classical model, meaning that tax is generally payable at each level of the chain, without credit being given at a higher level in that chain for tax suffered lower down. Therefore, when profits are distributed by an Irish-resident company, Irish-resident shareholders are not given credit for underlying corporation tax already suffered by the company.
The tax system is a schedular system, in that income from different sources is allocated to different 'schedules' and 'cases' and may be taxed in different ways. Corporation tax rates, and the deductions available against income sources, vary depending on the source of the income.
i Tax on profits
Determination of taxable profit
A company's income is generally computed in accordance with income tax principles. The aggregate net income as calculated under each of the schedules and cases gives the company's taxable income, and when this in turn is aggregated with taxable capital gains, the company's total profits are arrived at.
The profits of a trade carried on by a company are computed in accordance with generally accepted accounting practice, but subject to any adjustment required or authorised by law in computing such profits or gains for those purposes. Consequently, any deductions that are given in the accounts but are statutorily disallowed for Irish tax purposes need to be added back. As a general rule, no tax deduction is allowed against trading income for capital expenditure or for revenue payments that are not incurred wholly and exclusively for the purposes of the trade. By way of example, client entertainment expenditure is not allowed for tax purposes and motoring revenue expenses are generally restricted. In addition, accounting depreciation is disallowed for tax purposes, but instead a deduction may be granted for allowances as provided for by Irish tax legislation – known as 'capital allowances' – in respect of capital expenditure incurred on various types of assets (e.g., plant and machinery, industrial buildings and intellectual property rights) for the purpose of the trade.
The general capital allowance regime for plant and machinery grants a capital allowance on a straight-line basis over eight years (12.5 per cent per annum) for the capital expenditure incurred on the asset. Generally, the rate of capital allowances for industrial buildings is 4 per cent per annum. In the case of capital expenditure on intellectual property rights, the allowances are generally granted in accordance with the amortisation of those assets in the accounts or, at the company's election, over a period of 15 years (see also Section V.ii). Disposals of the assets for amounts greater than or less than the tax written-down value may result in balancing charges or balancing allowances for the company.
Capital and income
A fundamental feature of the Irish tax system is the separate treatment for Irish tax purposes of income and capital. Income is subject to income tax (or, in the case of companies within the charge to corporation tax, to corporation tax computed by reference to income tax principles), whereas capital receipts generally are subject to capital gains tax (CGT) (or, in the case of companies with a charge to corporation tax, to corporation tax by reference to CGT rules) and generally computed by reference to separate rules for capital gains. The rates of tax applicable to income and gains differ. Companies are taxed on income at a rate of either 12.5 or 25 per cent, whereas capital gains are generally taxed at 33 per cent.
When, after the deduction of trading expenses, a company incurs a current-year trading loss, it can normally use that loss to shelter other trading income in the current year and also trading income (from the same trade) in a preceding accounting period of corresponding length. When the company has excess trading losses, these losses can be used on a value basis to shelter other income of the same accounting period or preceding accounting period of corresponding length, reflecting that different corporation tax rates apply to trading and non-trading income. Unused losses can then be carried forward by the company for offsetting against income from the same trade in future accounting periods.
An anti-avoidance provision operates to deny the carry-forward of unused trading losses (and certain capital allowances) where, within a period of three years, there is both a change in ownership of the company, and a major change in the nature and conduct of the trade carried on by the company. The provision also denies the carry-forward where the activities in a trade have become small and negligible and there is a change in ownership of the company before any considerable revival of the trade.
In general, non-trading revenue losses can only be used for offset against non-trading income taxed in the same manner. For example, Irish rental losses can only be offset against Irish rental income in the same accounting period, or an earlier accounting period of corresponding length or subsequent accounting periods. Excess capital losses can shelter future capital gains, except gains on disposal of Irish development land.
Certain investment companies are allowed to claim expenses of management against their profits. If there is an excess of management expenses, such excess can be carried forward to future accounting periods.
The rate of tax applicable to most trading profits (other than profits derived from trading activities involving mining, petroleum activities and dealing in land) is 12.5 per cent. For profits generated from these excluded trades and all other non-trading income, the applicable rate is 25 per cent. In addition to the 25 per cent tax on trading profits from petroleum activities, a petroleum production tax (PPT) applies to oil and gas licences and options granted on or after 18 June 2014. The rate of PPT ranges from 5 to 40 per cent, but is tax deductible against profits or gains chargeable to corporation tax resulting in a maximum marginal rate of 55 per cent. The rate for capital gains has traditionally been different to these rates, and the current rate stands at 33 per cent. A 10 per cent rate applies to certain gains realised by entrepreneurs on the disposal of certain business assets.
The Revenue Commissioners are the sole taxation authority in Ireland.
A system of self-assessment applies for the payment of corporation tax, and a system of mandatory electronic payment and filing of returns (e-filing) is now largely in place. Companies are required to make a payment of preliminary tax that must, in general, be a minimum of 90 per cent of the corporation tax for that period. The dates and amounts for payment of preliminary tax differ depending on whether the company is a small or large company. For a small company, the payment of preliminary tax is due in the 11th month of the company's accounting period. For a large company, one with a tax liability of more than €200,000 in the previous accounting period, payment of preliminary tax is made in two instalments, in the sixth and 11th months of the accounting period.
A corporation tax return must be filed with the Revenue Commissioners before the nine months after the end of the accounting period (but no later than the 23rd day of that month), together with the balance of tax due.
Where a doubt exists about the tax treatment of a specific item, a company may take a view on the issue and express doubt on its tax return filing. A formal genuine expression of doubt protects a taxpayer from interest (provided any additional tax arising is paid when due) and penalties should the Revenue Commissioners take a different position to the company on the tax treatment.
An audit may be conducted by the Revenue Commissioners if, upon a review of a company's tax returns, queries are raised that are not answered satisfactorily. A revenue audit may also be conducted on a random basis, and in some cases randomly within a particular business or profession.
Ireland does not permit the filing of consolidated tax returns. Affiliated companies may, however, be able to avail of corporate tax 'group relief' provisions. Where a direct or indirect 75 per cent relationship exists, and all the companies are resident in a European Union (EU) Member State or a European Economic Area (EEA) country with which Ireland has a double taxation agreement (DTA), each of the companies will be deemed a member of the group.
Group relief can be claimed on a current year basis in respect of trading losses, excess management expenses and excess charges on income within a group. Irish legislation now provides that an Irish resident parent company may offset against its profits any losses of a foreign subsidiary resident for tax purposes in an EU Member State or an EEA country with which Ireland has a DTA. This is provided that the losses cannot be used in the country in which the subsidiary is tax resident.
Capital losses cannot be surrendered within a group. Capital assets can, however, be transferred between members of a CGT group on a tax-neutral basis. Any gain referable to the group's ownership will be precipitated when the asset is disposed of outside the group, or when a company that acquired the asset intra-group ceases to be a member of the group within 10 years of the acquisition.
A group for CGT purposes is a principal company and all its effective 75 per cent subsidiaries. For the purposes of identifying the relevant indirect ownership interest in a company, holdings by any EU Member State company, EEA resident company, company resident in a tax treaty partner country, or certain companies that are substantially and regularly traded on a recognised stock exchange, may be taken into consideration.
ii Other relevant taxes
VAT is payable on goods and services supplied in Ireland by taxable persons in the course of business. VAT is also payable on goods imported into Ireland from outside the EU. The rates of VAT currently range from zero to 23 per cent. An Irish established taxable person is required to register for VAT purposes when its annual turnover exceeds €37,500 if its business supplies services and where its annual turnover exceeds €75,000 if the business is supplying goods. A non-Irish established taxable person supplying taxable goods or services in Ireland is obliged to register and account for VAT irrespective of the level of turnover.
Stamp duty applies to documents that implement certain transactions and is payable within 30 days of execution. Transfers of Irish stocks and marketable securities are chargeable to stamp duty at 1 per cent.
Transfers of other non-residential property attract a flat rate of 6 per cent stamp duty currently. It is proposed pursuant to Finance Bill 2019 to increase that rate to 7.5 per cent. The 7.5 per cent rate is to apply to instruments executed on or after 9 October 2019. The Finance Bill 2019 provides for transitional arrangements. Where there is a binding contract in place before 9 October 2019 and the instrument of transfer is executed before 1 January 2020 and the instrument contains a certificate, stamp duty applies at the pre-budget rate of 6 per cent. Where non-residential land is purchased for residential development and stamp duty is paid at the new rate of 7.5 per cent, a refund of up to 11/15ths of the stamp duty paid may be available where certain qualifying conditions are met.
Exemptions exist in the case of intellectual property and certain financial instruments. In addition, various types of relief apply in the case of company reconstructions, amalgamations, intra-group asset transfers, cross-border mergers and domestic mergers by absorption. An exemption from stamp duty also exists for the transfer of stocks and marketable securities of companies listed on the Enterprise Securities Market of the Irish Stock Exchange.
Stamp duty at the rate of 1 per cent is to be introduced pursuant to Finance Bill 2019 as an anti-avoidance measure for certain schemes of arrangement involving the cancellation of shares.
Employers have an obligation to register with the Revenue Commissioners and follow the procedures for the deduction at source of employee's income tax, known as pay-as-you-earn (PAYE), and social insurance contributions, known as pay-related social insurance (PRSI) and the universal social charge (USC). Employers have primary responsibility for the collection of the tax, and must ensure PAYE, USC and PRSI are operated on any additional taxable benefits, such as benefits in kind, provided to employees. In addition to the PRSI deduction from an employee's income, the employer must make a PRSI contribution for each employee, generally at a rate of 10.75 per cent of the gross salary of the employee.
IV TAX RESIDENCE AND FISCAL DOMICILE
i Corporate residence
Companies incorporated in Ireland on or after 1 January 2015 are automatically regarded as Irish tax resident unless treated as tax resident elsewhere under a tax treaty with Ireland. For companies incorporated before that date, this 'incorporation rule' applies from the earlier of 1 January 2021 or the date where there is a change in the ownership of the company and within a specified period there is also a major change in the nature or conduct of the business of the company. Otherwise, until either of those events occurs, the tax residence of a company incorporated in Ireland prior to 1 January 2015 is broadly determined by virtue of the common law rule that a company is Irish tax resident if it is 'centrally managed and controlled' in Ireland. This is subject to a 'stateless' company rule where an Irish-incorporated company is managed and controlled in another EU Member State or jurisdiction with which Ireland has a DTA and is not regarded as tax resident in any territory. In such a case, the company is regarded as resident in Ireland for tax purposes. The provision does not, however, affect structures that involve Irish-incorporated companies that are in fact managed and controlled in a non-EU or non-DTA jurisdiction (e.g., Bermuda).
A non-Irish-incorporated company (whether incorporated before or after 1 January 2015) can become resident in Ireland if its 'central management and control' is exercised in Ireland. Generally speaking, this case law concept is taken to denote control at the highest strategic level of a company's business rather than at the level of day-to-day activities. Many factors need to be looked at when considering where a company is to be regarded as having its place of central management and control; for example, the place where company board meetings are held and the place where the directors of the relevant company are themselves resident.
ii Branch or permanent establishment
A company not resident in Ireland is subject to corporation tax if it carries on a trade in Ireland through a branch or agency, and it will be chargeable on all profits arising therefrom. However, an exemption exists in the case of an authorised investment manager who acts as an agent on behalf of a non-resident in carrying on a financial trade and is independent of the non-resident. In addition, an Irish management company appointed to manage a non-Irish undertaking for the collective investment in transferable securities (UCITS) fund should not as a result bring the non-Irish UCITS into the Irish tax net. Nor should an Irish management company appointed to manage a non-Irish alternative investment fund bring the latter into the Irish tax net.
The concept of branch or agency is not defined in Irish statutory tax law; although similar to the Organisation for Economic Co-operation and Development (OECD) Model Treaty concept of the permanent establishment, it is likely wider in its scope. For example, the emphasis on a fixed presence, and on a degree of permanence, is probably not necessary for a branch or agency to exist for the purposes of Irish law. Liability to Irish tax will normally depend on whether the operation of the non-resident company constitutes trading in Ireland. The major consideration in this determination is whether there is power to conclude contracts and whether contracts are in fact concluded in Ireland.
In cases where the company is resident in a country with which Ireland has a tax treaty, liability to Irish corporation tax will depend on whether the company carries on a trade in Ireland through a permanent establishment. The treaty may displace an Irish corporation tax charge that would apply in the absence of the treaty.
There are many views as to how profits should be allocated to a permanent establishment, but given the wording of the business profits article in the majority of Ireland's tax treaties, an approach that treats the permanent establishment as being a fictitious separate legal entity to which income and expenses are allocated as if it were an independent company is likely to be acceptable to the Irish Revenue Commissioners. There is no statutory basis for the calculation of profits to be allocated to a branch, but an approach that treats the Irish branch as a fictitious separate legal entity, similar to the approach taken for a permanent establishment, may be considered to be reasonable.
V TAX INCENTIVES, SPECIAL REGIMES AND RELIEF THAT MAY ENCOURAGE INWARD INVESTMENT
i 12.5 per cent tax rate for trading income
The cornerstone of Ireland's attraction for foreign companies is undoubtedly the 12.5 per cent corporate tax rate. This applies to the income of a trade at least partly carried on in Ireland. There is no precise statutory definition of 'trading' or a 'trade', and it is therefore necessary to refer to relevant case law to determine whether a trade exists. A UK Royal Commission reported in the 1950s on a similar definition in the UK tax legislation and identified the relevant principles that are indicative of trading activity, known as the 'badges of trade'. These include the length of the period of ownership of the relevant subject matter and the frequency of transactions that the relevant company enters into. It is important to note that the Irish Revenue Commissioners will also seek a minimum level of 'substance' or physical presence in Ireland.
ii IP regimes
Irish tax legislation provides relief in relation to the acquisition of specified intangible assets, which include patents, copyright, registered designs, design rights or inventions, trademarks, trade names, brands, brand names, domain names, service marks or publishing titles, know-how and certain software. The definition of 'specified intangible assets' also includes the acquisition of 'customer lists' except where the lists are acquired directly or indirectly in connection with the transfer of a going concern. The relief is given by means of a capital allowance deduction available against trading income that is derived from activities that consist of the managing, developing or exploiting of the IP, including activities that comprise the sale of goods or services that derive the greater part of their value from the IP. An 80 per cent cap applies on the annual deductibility of capital allowances and related interest expense in relation to expenditure incurred on intangible assets on or after 11 October 2017.
A reward mechanism for key employees involved in R&D activities allows (where appropriate) a company to surrender part of its R&D tax credits to a qualifying employee to effectively enable him or her to receive part of his or her remuneration free from tax.
A number of improvements to the R&D tax credit regime as it applies to small and micro companies are detailed in Finance Bill 2019. It envisages an increase in the R&D credit from 25 to 30 per cent; a provision to allow such companies to claim the credit with respect to pre-trading R&D expenditure for off-set against VAT and payroll taxes; and amendments to the method for calculating the refundable credit amount.
iii Knowledge Development Box (KDB)
The KDB provides for an effective 6.25 per cent rate of corporation tax on profits arising from qualifying assets, including certain patents and copyrighted software that are the result of qualifying R&D carried out by the company availing of the relief (i.e., the tax relief provides for an allowance of 50 per cent of the qualifying profits to be treated as a trading expense of the company, resulting in an effective 6.25 per cent tax rate on such profits). The definition of R&D is the same as that applying to the R&D tax credit, but only allows R&D expenditure incurred in another EU Member State to the extent it is tax deductible in Ireland. The KDB has been promoted by the government as the first OECD-compliant preferential tax regime in the world.
iv Holding company regimes
Ireland has a holding company regime that provides for an exemption from Irish tax on capital gains arising on a disposal of substantial shareholdings held by companies in subsidiaries. The exemption applies when the shares disposed of are in a company that is resident for tax purposes in the EU or in a country with which Ireland has signed a tax treaty. The Irish company must have held at least 5 per cent of the company whose shares are being sold for a period of at least 12 months ending in the previous 24 months; and the company whose shares are being sold, or the disposing company and all its 5 per cent affiliates taken as a whole, must be wholly or mainly involved in trading activities.
A parallel exemption applies with respect to options over shares and convertible securities, provided the disposing company is one that would be entitled to exemption on a disposal of shares.
v Irish finance companies – recent extensions
Specific tax legislation was introduced a number of years ago to encourage the use of Ireland as a jurisdiction for locating finance vehicles. The asset classes that these companies are permitted to hold and manage include plant and machinery (e.g., aircraft), commodities and carbon credits as well as most forms of financial assets. A company coming within the relevant provision of the Irish tax legislation, Section 110, may be used advantageously in securitisations and in a wide range of finance transactions. The legislation effectively provides that where a relevant company falls within its ambit, its profits will be calculated as if it were carrying on a trade. As a result, expenses such as funding costs, payments made under hedging swaps and payments to services providers are generally deductible. The deductibility position is bolstered by two further specific statutory provisions. First, the normal distribution rules are modified to the extent that, broadly, the provision that recharacterises interest as a distribution (see below) does not apply to interest payable in respect of a debt obligation of a qualifying company where the interest is profit-dependent or excessive. Second, the statutory provision deals with the deductibility of bad or doubtful debts, and allows for a specific deduction in respect of such amounts to the extent they are not otherwise deductible under general principles. Some limited restrictions on deductibility were introduced in 2011; however, these would not affect the majority of structures.
Notwithstanding the fact that profits are calculated on the assumption that the qualifying company is carrying on a trade for tax purposes, the taxable profit of that company is subject to tax at the higher corporation tax rate of 25 per cent. That higher rate of tax generally has little consequence, as most transactions entered into by a qualifying company are generally structured so that the deductions available to the company result in minimal taxable profit arising in the company.
Generally, to come within the provisions of Section 110 of the Irish tax legislation, a company must be resident for tax purposes in Ireland, and must acquire and manage or hold qualifying assets the market value of which, on the day it first acquires assets, is not less than €10 million. The definition of qualifying asset includes most types of financial assets, commodities, plant and machinery (including aircraft) and carbon offsets. A notification must be made by the company within eight weeks of the first acquisition of 'qualifying assets' to the Revenue Commissioners in relation to the company's intention to be a qualifying company.
vi Tax-exempt regulated funds
Ireland is the largest hedge fund administration centre in the world, with the Irish funds industry servicing assets worth over €3 trillion held in over 13,000 funds. One of the principal factors in enabling Ireland to establish its position as a leading global fund jurisdiction is the tax neutrality of Irish-regulated funds.
There is a specific tax regime that applies to Irish-regulated funds, which is applicable to all types of funds that are established in Ireland and are authorised by the Central Bank of Ireland. These can include variable capital companies, Irish collective asset-management vehicles (ICAVs), unit trusts, investment limited partnerships and common contractual funds. From a tax perspective, an important feature of the ICAV is that it is able to elect its classification under US 'check the box' taxation rules.
This tax regime treats all such funds (other than investment limited partnerships and common contractual funds) as resident in Ireland for Irish taxation purposes, but provides that the funds do not pay tax on their income or gains as they arise. Instead, it imposes an exit tax regime whereby an exit tax arises on the occasion of certain chargeable events arising in respect of investors. For the vast majority of investors, there is no actual Irish tax liability suffered through the investment in an Irish fund, as these chargeable events do not give rise to tax if the relevant investor is neither resident nor ordinarily resident in Ireland for Irish tax purposes.
Irish-resident or ordinarily resident investors (other than certain exempt residents' investors, e.g., charities, pensions schemes) suffer an exit tax on the occasion of certain chargeable events. Such chargeable events are broadly:
- income and other distributions;
- redemptions and repurchases of units by the fund;
- disposals of units by investors; and
- deemed disposals occurring on each eight-year anniversary of an investor's acquisition of units.
On these chargeable events, generally the fund is required to operate an exit tax. Where the chargeable event is an income or other distribution by the fund, tax will be deducted at a rate of 41 per cent or, where the investor is a company and the relevant declaration has been made to the fund, at a rate of 25 per cent. In relation to all other forms of chargeable events, tax will be deducted at a rate of 25 per cent for corporate investors where the relevant declaration has been made to the fund, and 41 per cent for all other types of investors. There are certain exemptions for fund reorganisations.
Exemptions applicable to Irish funds have also been introduced for indirect taxes. There is no stamp duty payable on the issue or transfer of units in a fund. There is an exemption from Irish inheritance tax and gift tax for gifts on inheritances between non-Irish residents of units in an Irish fund.
In general, no Irish VAT is suffered or payable by a fund in respect of investment management services, administration services or custodial services provided to it. There is a practice that can enable funds to recover any VAT paid by the fund in respect of supplies received by it by applying a specific formula either on the basis of the proportion of the assets of the fund that are outside the EU, or the proportion of investors that are outside the EU.
A real estate investment trust (REIT) regime was introduced a number of years ago to complement the existing regulated fund regime. The REIT regime provides investors with greater access to investments in regulated listed property vehicles. Broadly speaking, a publicly quoted REIT that meets certain conditions is exempt from tax at a corporate level. The profits of the REIT are instead subject to tax at shareholder level only.
The Finance Bill 2019 proposes a number of changes to the REIT regime. For example, there is a requirement that any expenses deducted when calculating REIT profits available for distribution must be incurred wholly and exclusively for the purposes of the REIT business. Any excessive amounts are charged to tax in the hands of the REIT. Also, any distributions comprising the proceeds of property disposals are to be subject to dividend withholding tax.
A 20 per cent withholding tax applies on certain payments by a non-UCITS fund that constitutes an Irish real estate fund (IREF) to certain investors. Broadly, an IREF refers to a non-UCITS fund where at least 25 per cent of the value of the fund (or sub fund in the case of an umbrella fund) derives from Irish real estate or assets that derive their value from Irish real estate.
The Finance Bill 2019 proposes to introduce a number of anti-avoidance measures broadly to ensure that the level of IREF tax on the profits of an IREF when these are distributed or otherwise released to investors is not reduced through certain tax structuring techniques.
vii State aid
IDA Ireland (IDA), one of Ireland's principal inward investment promotion agencies, offers a range of services and incentives, including funding and grants, to companies considering an inward investment in Ireland.
The IDA will in certain cases offer capital grants that are available towards the cost of fixed assets including site development. Rent remissions and rent allowances may also be available. Grants may also be available to meet the cost of training workers in new projects, and there are a number of additional incentives available for companies undertaking R&D programmes in Ireland. The IDA owns several industrial parks with purpose-built factories and can also offer greenfield sites where promoters can erect custom-built facilities.
Employment grants may be available to a company where permanent full-time positions are created, and these are a commonly used IDA grant. The unique characteristics of any proposed project will determine the incentive package available, in particular its location. Employment grants are now mostly available for employment in the western and midlands regions of Ireland, and also in the areas that border Northern Ireland. The IDA evaluates potential projects through a process of negotiation. Aside from location, amounts paid tend to depend on the level of investment involved, the activities undertaken and the skill level of the employee.
The ease of doing business in Ireland is an important factor for investors. It is to Ireland's advantage that it is an English-speaking EU Member State (and will be the only English-speaking Member State apart from Malta after Brexit) and one with a common law legal regime. As a location, Ireland bridges the time zone gap between the East and West. In the World Bank 'Doing Business 2019' report, Ireland is ranked 11th in Europe and 23rd in the world in terms of ease of doing business. Ireland's ranking fell from eighth in Europe and 17th in the world from the previous year.
A PwC 'Paying Taxes 2019' report has ranked Ireland first in Europe for ease of paying taxes and the fourth most effective worldwide. The Irish workforce is among the best educated in the world; the share of population aged 25 to 34 with a third-level qualification is higher than in the United States or the United Kingdom, and is above the OECD average. Fifty-six per cent of Irish 25- to 34-year-olds have received higher or further education. The average for the OECD is 44 per cent. This Irish score is the highest in Europe and the fourth highest in the world. The findings are contained in the OECD's Education at a Glance 2019 Report.
VI WITHHOLDING AND TAXATION OF NON-LOCAL SOURCE INCOME STREAMS
i Withholding on outward-bound payments (domestic law)
Annual interest, patent royalties (however, see exemptions below), dividends and other distributions paid by an Irish-resident company are generally subject to withholding tax, currently at a rate of 20 per cent, absent an exemption. The Finance Bill 2019 proposes to increase the withholding tax rate on dividends and other distributions to 25 per cent from 1 January 2020. Withholding obligations are not generally imposed on non-patent IP royalties or on payments for the use of equipment, such as aircraft lease rentals.
ii Domestic law exclusions or exemptions from withholding on outward-bound payments
There are various exemptions under Irish domestic law applicable to interest and dividend payments. In particular, in the case of cross-border interest payments, interest will be exempt if it is paid:
- on quoted Eurobonds;
- by a company in the ordinary course of business to a company resident in an EU Member State (other than Ireland) or in a tax treaty country, provided that either the country generally imposes a tax on such interest receivable by the company or the interest is exempted under the relevant tax treaty. This exemption will not apply where it is paid in connection with a trade or business carried on in Ireland by the payee;
- by a securitisation qualifying company to a person resident in an EU Member State (other than Ireland) or in a tax treaty country, except where it is paid in connection with a trade or business carried on in Ireland by the payee; and
- on certain wholesale debt instruments for which the term is less than two years.
In the case of cross-border dividend or distribution payments, they will be exempt if paid by an Irish-resident company to:
- a non-resident individual resident in an EU Member State (other than Ireland) or in a tax treaty country;
- an EU company holding at least 5 per cent of the Irish company (Irish enactment of the Parent–Subsidiary Directive);
- a non-resident company that resides in an EU Member State (other than Ireland) or in a tax treaty country, provided that the company is not controlled by a person or persons resident in Ireland;
- a non-resident company that is ultimately controlled by a person or persons resident in an EU Member State (other than Ireland) or in a tax treaty country;
- a non-resident company whose principal class of shares is substantially and regularly traded on a stock exchange in Ireland or in an EU Member State (other than Ireland) or in a tax treaty country; or
- a non-resident company that is either a 75 per cent subsidiary of a company the principal class of shares of which is quoted and regularly traded on such a stock exchange, or that is wholly owned by two or more such companies.
The obligation to withhold tax and pay it to the Revenue Commissioners is placed on the company paying the dividend. With the exception of the application of the EU Parent–Subsidiary Directive, a shareholder who seeks to avail of an exemption must lodge an appropriate declaration with the paying company certifying that a particular exemption applies.
Patent royalties are also eligible for a domestic withholding exemption where the payments are made by a company in the course of a trade or business to a company resident in an EU Member State (other than Ireland) or in a tax treaty country. The payments must be made for bona fide commercial reasons to a company in a territory that generally imposes a tax on royalty payments receivable from outside that territory. The exemption does not apply where the royalties are paid in connection with a trade carried out in Ireland through a branch or agency by the receiving company.
In addition to the statutory exemptions from withholding on patent royalties, a further category of exemption can be obtained under an administrative statement of practice issued by the Revenue Commissioners. Permission for payment of patent royalties gross can be applied for where the recipient is not resident in the EU or in a tax treaty country once a number of conditions are satisfied. The royalty must be paid in respect of a non-Irish patent by a company in the course of its trade, and under a licence agreement executed and subject to law outside Ireland. There are restrictions on the recipient company, which must be the beneficial owner of the payment, and must be neither resident in Ireland nor carrying on a trade in Ireland through a branch or agency (even if that branch or agency is unconnected with the royalty payment).
iii Double tax treaties
Ireland has signed comprehensive double taxation treaties with 74 countries; 73 of those treaties are currently in effect. On 13 June 2019, Ireland and the Netherlands signed a new DTA. Procedures are under way to ratify the new DTA, which will replace the existing DTA between Ireland and the Netherlands. Negotiations have concluded for new DTAs with Kenya, Kosovo, Oman and Uruguay. A new double taxation convention with Ghana was signed on 7 February 2018 and procedures to ratify the convention are under way.
In relation to outbound payments, generally the generous domestic withholding exemptions outlined above are relied upon rather than exemption under an applicable treaty, which often requires the authorisation of the Revenue Commissioners. In relation to inbound payments, the rates of withholding currently applicable under the Irish tax treaty network are set out in Appendix I.
iv Taxation on receipt
Ireland generally operates a credit system rather than an exemption system, although, in the case of dividends, dividends received by an Irish-resident company are exempt if received from another Irish-resident company, or where the particular shareholding in the foreign company is less than 5 per cent and the dividends form part of the trading income of the Irish company. To the extent that dividends are received from companies resident in the EU, in a tax treaty country or in a territory that has ratified the Convention on Mutual Administrative Assistance in Tax Matters, and are payable out of the trading profits of such subsidiaries, those dividends are taxed in the hands of an Irish holding company at the lower 12.5 per cent rate. The lower rate may also apply to dividends paid out of the trading profits of companies resident in non-treaty countries where the company is owned by a publicly quoted company. In any other scenario, the 25 per cent rate should apply.
An Irish tax liability for dividends received from a foreign subsidiary may be reduced by any foreign withholding tax on the dividend and by an appropriate part of the foreign tax on the income underlying the dividend. This unilateral credit provision applies equally to countries that do not have a tax treaty with Ireland. The credit is not limited to first-tier tax, but to lower-tier companies having certain qualifying connections. The credit is available with respect to dividends from a 5 per cent shareholding in a foreign company. In such a case, the credit is available at a lower subsidiary level where the immediate relationship is at least 5 per cent and the Irish company itself also controls at least 5 per cent of the lower level company. Pooling of foreign tax credits is available to reduce the overall Irish tax bill when a company is in receipt of several foreign dividends, and excess foreign tax credits can be carried forward indefinitely.
A unilateral credit is also available to companies receiving royalties or interest as part of the income of a trade in respect of foreign tax suffered on the royalties or interest. This applies where no double tax treaty is in place to provide relief, or where the unilateral relief is greater than the provisions of an applicable double tax agreement.
VII TAXATION OF FUNDING STRUCTURES
Irish companies are generally funded through a combination of debt and equity (and, by way of extension, 'capital contributions').
i Thin capitalisation
Ireland does not have any general thin capitalisation rules. However, see below in relation to the reclassification of certain interest payments as non-deductible distributions. There are also some restrictions where related-party borrowings are used to purchase assets from another related party.
ii Deduction of finance costs
A deduction is generally available for interest incurred by a company for the purposes of its trading operations, even where it may be suggested that the interest was incurred on capital account in the financing of a capital asset, rather than in the financing of current assets or general operations.
Interest incurred on borrowings of a company for the acquisition of shares of a trading company or of a company that holds shares in trading companies, or for lending to such companies, may also be deductible, subject to certain conditions being satisfied. Several conditions are required to be satisfied, including that the borrowing company must beneficially own, directly or indirectly, more than 5 per cent of the relevant company, and must share at least one director with the company or a connected company. Restrictions apply to the recovery of capital by the borrower from the company, and anti-avoidance measures deny the interest relief in certain circumstances, such as certain wholly intra-group transactions and transactions where the purpose or one of the purposes of which is the avoidance of tax.
However, in certain circumstances an interest payment made by a company may be reclassified as a distribution for tax purposes, and no tax deduction will be available to the company in that instance. This can apply to interest paid on securities:
- that are convertible into shares when they are neither quoted nor comparable to quoted convertible securities;
- when the interest is profit-dependent or excessive;
- that are held by a 75 per cent foreign parent company or affiliate that is not resident in an EU Member State (although, where the interest is paid in the ordinary course of a trade and the paying company makes an election, 'interest' treatment will apply to a company resident in a country with which Ireland has a treaty); or
- 'connected' with shares.
Anti-Tax Avoidance Directive (ATAD) 1 must generally be implemented by each Member State by 2019 subject to certain derogations for Member States that have equivalent measures in their domestic law. Ireland previously notified the EU Commission of its intention to derogate from the interest limitation rule, potentially until 1 January 2024. Notwithstanding this it was suggested the interest limitation rule could be introduced in Ireland as early as 1 January 2020. However, the Finance Bill 2019 makes no mention of this. As such it is unlikely that interest limitation measures will be introduced until 1 January 2021 at the earliest.
ATAD 2 must be implemented by all EU Member States by 1 January 2020. The Finance Bill 2019 contains measures which if enacted will provide for hybrid mismatch rules as mandated by ATAD 2.
iii Restrictions on payments
Under Irish company law, dividends can generally only be paid out of a company's distributable reserves. These are its accumulated realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated realised losses, so far as not previously written off in a reduction or reorganisation of capital.
iv Return of capital
Irish company law permits a limited liability company to return share capital and acquire its own shares, provided this is from the company's distributable reserves.
A court-approved reduction or repayment of share capital is possible when a number of statutory procedures are followed, the creditors of the company are adequately protected and the constitutional documents of the company allow for such a reduction. The court may refuse its consent in certain circumstances; for example, where there is an infringement of class rights or where the reduction is not in the public interest.
In addition, the Companies Act 2014 includes a provision for a'summary approval procedure' to validate reduction in a company's capital. This amended process offers an alternative to seeking court approval and is considered to be beneficial from a cost perspective.
Any payment made out of the assets of the company that represents a repayment of capital on shares is not treated as a distribution, whereas any payment in excess of the original capital subscription will be so treated. In certain circumstances, payments that would otherwise fall to be treated as a distribution can be treated instead as a capital payment and taxed under CGT rules.
In general, a payment made on the redemption, repayment or purchase of shares by a quoted company shall not be treated as a distribution unless made for tax-avoidance purposes. In the case of an unquoted trading company or unquoted holding company of a trading group, such a payment shall not be treated as a distribution subject to certain conditions. These include that the redemption, etc., must be for the purpose of benefiting a trade carried on by the company or by any of its 51 per cent subsidiaries, and must not be for tax-avoidance purposes. The vendor must also satisfy a number of conditions, which include that it must be Irish resident, have owned the shares for a period of five years and satisfy a test of a 'substantial reduction' in shareholding where only part of its shares have been redeemed. The vendor must not be connected with the redeeming company after the redemption.
In addition, a reduction or reorganisation of share capital in exchange for a new holding may be treated as involving neither a disposal nor an acquisition of shares for capital gains purposes subject to certain restrictions.
VIII ACQUISITION STRUCTURES, RESTRUCTURING AND EXIT CHARGES
An Irish acquisition may be structured as an asset purchase or as a share purchase. Stamp duty is assessed on the transfer of Irish-registered shares at 1 per cent of the consideration, whereas the sale of business assets, subject to certain exemptions, may attract stamp duty at a rate of 6 per cent of the consideration due. Share sales are exempt from VAT. Irish asset sales are subject to VAT at rates of up to 23 per cent, although full VAT relief can be obtained where, broadly, the assets are being transferred as part of a transfer of a business.
In the case of a share purchase, Irish stamp duty will be charged on the acquisition of shares in an Irish company regardless of whether the acquisition company is established in or outside Ireland. It may be advantageous to use an Irish company as the acquisition company, given that dividends received by it from another Irish tax-resident company are generally tax-exempt in Ireland. The use of such an acquisition vehicle may also allow for the Irish substantial shareholdings capital gains exemption to be availed of. In addition, it is possible to surrender qualifying interest deductions as a charge within a group in certain circumstances (i.e., from the acquisition vehicle to the target company).
Even if the acquisition company is internationally held it is likely that, given the extensive exemptions from Irish dividend withholding tax, dividends may be paid by the Irish company free of dividend withholding tax. The use of a non-Irish tax resident acquisition vehicle will usually avoid a gain on the disposal of the stock unless its value is derived principally from Irish land or mineral rights.
In an asset acquisition, if the business is intended to be carried on in Ireland after the acquisition it may be preferable to use an Irish acquisition company, as the carrying on of the Irish business by a non-Irish tax-resident company is likely to bring it within the charge to Irish tax by virtue of carrying on a business in Ireland. The non-Irish resident acquisition company could be potentially liable to both Irish and foreign tax on the Irish business income.
Mergers of Irish companies into other companies are possible under Irish law. It is also possible to merge companies in two EU Member States under the provisions of the Cross-border Mergers Directive,2 and reorganisations are generally done by way of a share-for-share exchange, or business assets for shares, sometimes combined with a liquidation of one of the companies.
Reliefs from Irish stamp duty and CGT (at company and shareholder levels) are generally available for share-for-share exchanges and for intra-group business asset transfers.
Stamp duty relief is also available for instruments of transfer pursuant to certain mergers, including cross-border mergers. CGT relieving provisions for certain cross-border mergers are also available. Under the Companies Act 2014, procedures based on the Cross-Border Merger Regulations enable two Irish registered private companies (one of which must be a 'ltd' company) to merge, so that the assets and liabilities of one company are transferred to another and the transferring company is dissolved. This can be effected by using the summary approval procedure or court approval.
Ireland introduced an exit tax regime effective from 10 October 2018. The rules impose a tax on unrealised capital gains where companies migrate their tax residency and on certain other transactions outlined below.
The charge applies at the standard corporate tax rate of 12.5 per cent with an exception for scenarios where the event triggering the tax is part of a transaction designed to ensure the gain is taxed at 12.5 per cent rather than the standard capital gains tax rate of 33 per cent. This is an anti-avoidance provision that ensures that a rate of 33 per cent rate applies if the event is for the purpose of ensuring that the gain is charged at a lower rate.
Broadly, the tax occurs where:
- a company resident in another Member State transfers assets from its Irish permanent establishment to another territory;
- a company resident in another Member State transfers a business (including the assets) carried on by its Irish permanent establishment to another territory; or
- an Irish-resident company ceases to be tax resident in Ireland.
An amendment proposed in Finance Bill 2019 seeks to broaden the scope of the exit tax by removing the requirement in certain scenarios for the company transferring the asset or business to be resident in a member state.
Exit tax is not triggered if the assets of an Irish resident company continue to be used in Ireland by a permanent establishment of the company after the company has migrated.
There is an option available in certain instances for the exit tax to be deferred by paying it in instalments over five years.
IX ANTI-AVOIDANCE AND OTHER RELEVANT LEGISLATION
i General anti-avoidance
A general anti-avoidance provision is contained in tax legislation that denies tax advantages to transactions that are carried out primarily to create an artificial tax deduction, or to avoid or reduce a tax charge. Where a transaction is undertaken with a view to the realisation of profits in the course of a business carried on by a taxpayer and not primarily to confer a tax advantage, it will not be a tax-avoidance transaction. Nor will a transaction be a tax-avoidance transaction where it was arranged to obtain the benefit of any relief or allowance available under the Irish tax legislation that does not result in a misuse of the relevant provision.
Where a tax avoidance transaction is found to exist, the Revenue Commissioners may disallow any tax advantage arising as a result of the transaction and interest, and a surcharge may apply on any tax payable. A taxpayer may make a protective notification to the Revenue Commissioners in respect of a transaction within 90 days of beginning a transaction in circumstances where that taxpayer feels that there may be a risk that the transaction may be regarded by the Revenue Commissioners as a tax-avoidance transaction. Making a notification will protect the taxpayer from the potential application of interest and a surcharge should the Revenue Commissioners take such a view.
There is also a separate mandatory disclosure regime, which requires the promoters of tax schemes that have certain characteristics to disclose them to the Revenue Commissioners shortly after they are first marketed or made available for use.
ii Controlled foreign corporations (CFCs)
CFC rules apply for accounting periods beginning on or after 1 January 2019. The CFC rules introduce additional compliance measures on Irish-headquartered groups and on international groups that have located their regional headquarters and holding structures in Ireland.
Ireland has chosen to adopt the transitional framework under the ATAD that applies transfer pricing principles in determining whether profits of a low-taxed CFC should be taxed in Ireland. The general thrust of the regime is to assess an Irish company with a CFC charge based on an arm's-length measure of the undistributed profits of the CFC that are attributable to the activities of significant people functions (SPFs) carried on in Ireland.
The rules require an analysis as to the extent to which the CFC would hold the assets or bear the risks that it does were it not for the controlling company undertaking the SPFs in relation to those assets and risks. In line with ATAD, a number of exemptions are provided, including exemptions for CFCs with low profits or a low profit margin and an exemption where the essential purpose of the arrangements is not to secure a tax advantage. A one-year grace period is also allowed in respect of newly acquired CFCs where certain conditions apply.
iii Transfer pricing
Ireland has transfer pricing rules that apply to trading transactions between associated persons where the receipts are understated or the expenses overstated. The rules are currently not applicable to small and medium-sized enterprises. The introduction of transfer pricing rules in Ireland aligns the Irish Tax Code with best international practice by adopting the OECD Transfer Pricing Guidelines. Under grandfathering arrangements, related-party arrangements entered into before 1 July 2010 fell outside the scope of the rules.
Finance Bill 2019 seeks to extend the scope and application of Ireland's transfer pricing rules by, for example: (1) extending the application of the arm's length principle to the computation of non-trading income, capital allowances and chargeable gains relating to transactions between associated persons; (2) incorporating the OECD 2017 Transfer Pricing Guidelines into Irish law; (3) removing the previous grandfathering arrangements; and (4) extending the rules to small and medium-sized enterprises albeit with reduced documentary requirements.
iv Tax clearances and rulings
Ireland does not have a formal system of 'rulings' from the Revenue Commissioners. However, the Revenue Commissioners may issue informal pre-transaction opinions where clarity is sought in relation to complex issues arising, for example, regarding corporate restructurings or new inward investment projects, provided that they are given detailed and full information on the matter in respect of which the ruling is sought. The opinions of the Revenue Commissioners are not legally binding, and it is open to them to review their position when a transaction is complete and all the facts are known. However, where full disclosure of all the relevant facts and circumstances has been made by the taxpayer and an opinion has been issued, it is likely that the Revenue Commissioners would be estopped from resiling from their opinion.
X YEAR IN REVIEW
Changes to Ireland's tax legislation in 2019 continued to emphasise Ireland's commitment to job creation, and attracting and retaining investment, particularly in the context of Brexit.
The government has continued to reiterate its commitment to maintaining the 12.5 per cent corporation tax rate on trading profits, which is beyond doubt the cornerstone of the Irish corporation tax policy. In September 2018, it published 'Ireland's Corporation Tax Roadmap'. The Roadmap outlined Ireland's actions to date in the context of the changing international tax environment (e.g., introduction of country-by-country reporting, compliance with new international best practice by the Global Forum on Tax Transparency and the Exchange of Information, the implementation of DAC3). It also set out the next steps in Ireland's implementation of the various commitments it has made through EU directives and the OECD base erosion and profit shifting (BEPS) reports. In particular, the Roadmap signposted the following:
- CFC rules (BEPS Action 4 and ATAD Article 4) – legislation was introduced in the Finance Act 2018 to introduce CFC rules with effect from 1 January 2019;
- Multilateral Instrument (MLI) (BEPS Actions 2, 5, 6, 14 and 15) – the final legislative steps required to allow Ireland to complete ratification of the MLI were taken in the Finance Act 2018;
- interest limitation rules (BEPS Action 4 and ATAD Article 4) – given the complexity of Ireland's existing interest limitation rules it was thought that any transposition could potentially advance at the earliest to the Finance Bill 2019; however, while Finance Bill 2019 contains a number of anti-hybrid measures pursuant to ATAD2, no interest limitation rule has been included at this time;
- transfer pricing rules (BEPS Actions 8–10 and 13) – legislation is being introduced in the Finance Bill 2019 to update Ireland's transfer pricing rules; and
- mandatory disclosure rules (BEPS Action 12 and DAC 6) – legislation is being introduced in the Finance Bill 2019 to ensure Ireland fully implements the DAC6 Directive.
XI OUTLOOK AND CONCLUSIONS
The increase in inward investment witnessed in recent years continued into 2019, and reflects Ireland's commitment to attracting dynamic, innovative and technology-based business investment.
In 2011, the Prime Minister launched a five-year plan for Dublin's International Financial Services Centre with a view to creating 10,000 new jobs in this highly skilled area over a five-year period.
According to PwC's 2017 Irish CEO Pulse Survey, multinational corporations operating in Ireland remain confident about their Irish investments, with an overwhelming majority (96 per cent) of multinational CEOs confirming that their investment in Ireland is a success. Forty-two per cent indicated that they anticipate additional capital investment over that of the previous year. Meanwhile, 49 per cent of Irish companies now plan to expand their workforce, compared to just over one-third (34 per cent) in 2013.
Evidence of these trends is provided by companies such as PayPal, Boston Scientific Corporation, Analog Devices, Dell, McAfee, Accenture, Amgen, Deutsche Bank, BNY Mellon, Symantec and Ericsson undertaking expansions of their Irish operations, and by companies such as Twitter, Google, LinkedIn, Facebook, Zynga and many other major internet companies opening their European headquarters in Ireland in recent years.
PWC's 22nd global CEO survey published in 2019 shows that Irish leaders are cautiously optimistic, looking to find ways to grow their businesses amidst the atmosphere of uncertainty. While almost 60 per cent of those surveyed believe in Ireland's growth prospects, there is an increase in those who are uncertain about the Irish economy. When it comes down to their own businesses, CEOs are much more optimistic. The CEOs' focus is turning inward, to factors they can control in their environment.
Appendix I: Treaty rates for dividends, interest and royalties (per cent)
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