i Investment vehicles in real estate
A wide variety of vehicles are used to acquire real estate in Ireland including private companies, Irish regulated funds, such as Irish collective asset management vehicles (ICAVs); real estate investment trusts (REITs); and investment limited partnerships (ILPs), co-ownerships and limited partnerships. The choice of entity depends on the facts and the circumstances relating to the investors, the nature of the transaction, the term of expected return, and the availability of financing. Purchasers sometimes buy the property-holding entity but direct acquisition of the real estate is also common. Tax issues also influence the type of acquisition vehicle and consideration must be given to stamp duty, VAT recoverability, tax on income, tax on gains, and in some cases the restrictions in specific regimes such as qualifying investor alternative investment funds (QIAIFs) and REITs.
Historically, stamp duty was lower on share acquisitions but this saving was curtailed by legislation introduced in 2017. ICAVs were the most popular regulated entities and benefit from an exemption from Irish tax on their income and gains. However, the introduction in 2016 of a 20 per cent tax on retained profits in certain circumstances has reduced their attractiveness, bearing in mind the comparative costs of set up and operation. For Irish real estate with significant rental profits and lower potential capital appreciation, a non-resident company may be attractive as the tax rate (20 per cent) on rental profits is lower than for Irish resident companies (25 per cent).
REITs were introduced in 2013 and benefit from an Irish tax exemption on their qualifying income and gains. REITs are subject to a 20 per cent dividend withholding tax, which must be withheld by the REIT. In that regard, a REIT is somewhat analogous to a QIAIF.
ILPs are transparent for tax purposes, meaning that no direct tax is chargeable at the limited partnership level and instead the partners are taxed on their share of the profits. They are commonly used in fund structures or where investors have different requirements so each can use their own form of entity to acquire the partnership interest.
It is also common for loans secured on real estate to be acquired through Irish securitisation vehicles known as Section 110 companies. Irish tax law takes an unusual approach to taxing such debt held by non-Irish residents.
ii Property taxes
Under Irish tax law there are a number of taxes applicable to the ownership, development, transfer and investment in real estate.
Stamp duty may arise on the sale or lease of real estate with rates dependent on the nature and value of the property. Irish VAT (based on EU law) may also apply to Irish real estate transactions. The Irish rules on VAT on property are complex and require a detailed review of a number of factors including the nature of the property, when it was acquired or developed and whether VAT was recovered or could have been recovered on its acquisition or development. There are a number of other taxes that may apply on holding real estate including local property tax, which applies to residential property only, commercial rates, which applies to commercial premises only, and the vacant site levy, which applies to certain residential or regeneration sites that have been placed on registers maintained by local authorities. In addition, Irish capital acquisitions tax could apply to a gift or inheritance of Irish property or shares in an Irish incorporated company regardless of the place of residence, ordinary residence or domicile of the parties.
Rental income from Irish real estate is subject to Irish tax regardless of the residence of the investor although a lower tax rate applies to non-resident companies.
Disposals of Irish real estate held as an investment asset are subject to capital gains tax at 33 per cent regardless of whether the vendor is Irish resident. In addition, shares in companies deriving more than 50 per cent of their value from Irish real estate are subject to capital gains tax at 33 per cent whether or not the vendor is Irish resident. This is enforced by imposing a 15 per cent withholding from the consideration, which is the purchaser's responsibility. Certain options and loans secured on Irish real estate may be treated in the same way as a real estate asset for the purpose of the capital gains tax rules.
The revenue authorities have asserted in published practice that debt secured on Irish land is both Irish land and a security that derives the greater part of its value from Irish land for capital gains tax purposes. This is an unusual feature of the Irish tax system and is based on a published interpretation of the law rather than a specific legislative provision. This interpretation may be the subject of legal challenge. It is also unclear whether this is consistent with Ireland's tax treaty obligations.
The Irish tax regimes for REITs and regulated funds are dealt with in detail below but broadly these entities benefit from an exemption from Irish tax on their income and gains but withholding taxes may apply.
II ASSET DEALS VERSUS SHARE DEALS
i Legal framework
Real estate in Ireland is normally acquired under private contract. It is common for real estate to be acquired either as a direct purchase of the real estate or the purchase of a private company owning the real estate.
There is no 'one size fits all' approach in whether a direct purchase of the real estate or the purchase of a private company owning the real estate is more advantageous and it is the specific circumstances in each case that will determine the form of purchase.
Irish law does not impose a particular set of obligations on sellers nor does it afford to prospective purchasers a statutory set of protections. However, the vast majority of private property sales are conducted using the Law Society of Ireland's standard conditions of sale, which seek to strike a balance between the interests of the seller and the interests of the buyer. The common law principle of caveat emptor applies. In common with the practice in most jurisdictions, certain buyer protections, such as warranties and indemnities, can be built into a private property acquisition agreement. Some of these protections are built into the standard conditions of sale but others are additional protections that must be sought by the buyer. Sellers will try to limit their liability as much as possible so there will often be significant negotiation of the acquisition agreement. High-profile sales are sometimes effected by way of an auction process whereby property information is made available to a number of potential purchasers with each submitting bids for the seller's consideration after the due diligence stage. A preferred bidder is then selected and the acquisition agreement negotiated.
Consideration in Irish real estate transactions usually takes the form of cash, including a cash deposit, payable on exchange of contracts that is held by the seller's solicitors as stakeholders pending completion. The deposit is typically 10 per cent of the purchase price and is only refundable if the seller refuses or is unable to complete. If the buyer does not complete due to some fault of its own, the deposit may be forfeited. Other, but less common forms of consideration, include shares, loan notes, warrants, promissory notes or any combination of these. The balance of the purchase price is payable on completion (subject to any apportionment that may need to be carried out in respect of any prepaid income such as rent), which usually takes place within 28 days of exchange of contracts, subject to compliance with any closing conditions.
The acquisition of real estate via shares in a real estate-owning company is effected by way of a share purchase agreement and disclosure letter. Disclosures are made against the warranties in the share purchase agreement and a seller's liability is usually limited to the extent of matters fairly disclosed in or by the disclosure letter. Specific issues of concern discovered during due diligence may be dealt with by way of an indemnity from the seller to the buyer but indemnity protection is the exception rather than the rule. Warranty and indemnity insurance has become common to bridge the gap between the seller and purchaser. The Irish Takeover Rules 2013 do not apply to private share purchases so the parties may determine the timetable of a transaction and conditions to completion.
Whether the transaction comprises a direct purchase of the real estate or the acquisition of a real estate-owning company, antitrust approval may be required. Mergers or acquisitions that meet certain financial thresholds require competition clearance from the Competition and Consumer Protection Commission (CCPC), the antitrust regulatory body in Ireland. A buyer proposing to acquire a property asset that is generating a turnover or a buyer proposing to acquire direct or indirect control of a company with a trading business must provide advance notice to the CCPC and obtain its approval. Any transaction that requires CCPC approval will be void if put into effect before the approval of the CCPC is obtained. In recent years, changes in Irish antitrust law have resulted in many individual hotel acquisitions becoming notifiable transactions (as they are trading businesses generating a turnover). Other common conditions to closing include regulatory approval and shareholder approval (in public deals). Availability of financing (in private deals) is also a factor that will influence when closing takes place.
Foreign ownership of Irish real estate or shares in companies owning Irish real estate is not restricted but buyers in certain sectors, such as banking, insurance, financial services and telecommunications, may require authorisations from regulatory bodies. Government policy encourages foreign investment and the tax treatment of the acquisition can be favourable, depending on the structure used.
ii Corporate forms and corporate tax framework
The most common corporate forms to acquire real estate in Ireland are private companies, ICAVs, REITS and ILPs.
Private companies – Irish resident
Irish resident companies are subject to corporation tax on their worldwide profits and gains. The rate of tax applicable to the profits or gains of an Irish tax resident company is dependent on the nature of those profits or gains. Trading income is generally taxed at a corporate tax rate of 12.5 per cent,2 although most real estate trades (i.e., land development) are subject to a higher 25 per cent rate. Capital gains are normally taxed at 33 per cent.3
An Irish resident company will be liable to corporation tax at 25 per cent on rental profits plus a possible 20 per cent surcharge (applicable to undistributed profits of closely held companies). Deductions are available for rental expenses and tax deprecation (which is generally available on plant and machinery only) as well as interest on debt to finance the acquisition, improvement or repair of the property (and in certain circumstances debt used to refinance a qualifying loan). An interest restriction on loans related to residential property was phased out in the years 2016–2018 and no longer applies from 1 January 2019.
For Irish tax purposes, there are currently no interest limitation or thin capitalisation rules. This is because Ireland has a series of targeted interest relief provisions that restrict the ability of Irish resident companies to obtain interest relief against profits and therefore a general restriction was considered to be unnecessary. However, an interest limitation based on 30 per cent of earnings before interest, tax, depreciation and amortisation (EBIDTA) is likely to be introduced in line with the EU Anti-Tax Avoidance Directive (ATAD) and may be effective from 1 January 2020 or later. Anti-hybrid rules will come into effect 1 January 2020.
Irish transfer pricing rules do not currently apply to non-trading transactions. There was a public consultation in early 2019 on Ireland's transfer pricing rules and the possible extension to non-trading transactions is under consideration as part of this process. Separate to OECD-style transfer pricing, under Irish tax legislation market value rules can apply to connected party transactions.
Ireland does not operate a consolidated group or fiscal unity concept for Irish corporation tax purposes. Therefore, each company must file its own tax return based on its profits as a single entity. However, group relief is available: trading and some non-capital losses of one company may be set off against the profits of another group company, subject to adjustment for different tax rates applicable to the income giving rise to those gains and losses. Group relief is not available for gains arising on disposals of development land held as an investment asset. In addition, there is a restriction on the set off of losses incurred by the company itself against such gains. For this purpose, development land is defined as land with a market value exceeding its value if no further development (other than development of a minor nature) were possible.
Where real estate is held as a trading asset by an Irish tax resident company, the tax regime applicable to a disposal is different. The profits may be subject to corporation tax at 12.5 per cent for 'fully developed' property or 25 per cent for other property.4 For this purpose, fully developed means that the property must have been developed, by or for the company, before it is sold. The development must be to such an extent that it could reasonably be expected (at the point of sale), that no further material development of the land would be carried out in the following 20 years.
Rental income arising to Irish tax resident companies in respect of foreign real estate is also subject to corporation tax. Such companies may claim credit, where applicable, under a treaty or under domestic unilateral relief for foreign tax paid on the same income. Similarly, disposals of foreign real estate by Irish tax resident companies are subject to capital gains tax with credit where applicable under a treaty or under domestic unilateral relief for foreign tax paid on the same disposal.
A non-resident individual or company is liable to income tax on Irish rental profits at 20 per cent and the close company surcharge should not arise. Non-residents may also be subject to tax in their country of residence. Where rents are paid directly to a non-resident landlord, the tenant is obliged to deduct withholding tax at 20 per cent from the payment, which can be credited or refunded to the landlord. This withholding tax requirement does not arise where rents are paid to an Irish-based agent acting on behalf of a non-resident landlord who ensures that the correct tax is paid.
As mentioned above, disposals of Irish real estate (or shares deriving their value from Irish real estate) held as an investment asset are subject to capital gains tax at 33 per cent regardless of whether the vendor is Irish resident. This is enforced by imposing a 15 per cent withholding from the consideration, which is the purchaser's responsibility (see Section I.i, 'Direct taxes').5
QIAIFS, REITS and ILPs
The tax regimes applicable to ICAVs and REITs are set out in detail below but broadly these entities are exempt from tax on income and gains but withholding tax arises in relation to Irish real estate profits. An ILP is transparent from a taxation perspective.
Debt secured on Irish real estate
It is common for loans secured on real estate to be acquired through Irish securitisation vehicles known as Section 110 companies. Qualifying Section 110 companies are subject to corporation tax at 25 per cent but the profits of those companies are computed using trading principles and the deductions that are available for financing costs include profit-participating debt. Accordingly, in many cases the commercial and taxable profit arising is minimal. In addition, extensive withholding tax exemptions apply to interest payments by Section 110 companies. In 2016 and 2017, rules were introduced limiting the deductibility of profit-dependent interest relating to a Section 110 company's business of holding and managing loans, derivatives or units in a fund or shares in a company that derive the greater part of their value from Irish real estate.6 There are a number of exemptions from these new rules, which include collateralised loan obligation transactions, commercial mortgage-backed securities and residential mortgage-backed securities transactions, loan-origination businesses and sub-participation transactions. Section 110 companies continue to be used extensively for holding Irish and non-Irish debt in loan financing and securitisation transactions.
iii Direct investment in real estate
The direct tax implications of investment in Irish real estate by different forms of corporate entities had already been detailed above. The following indirect tax implications are applicable regardless of the investment vehicle.
Stamp duty applies on the transfer of Irish real estate and is payable by the purchaser. The rate of stamp duty applicable is dependent on the nature of the property and value of the property.
Stamp duty on residential property applies at a rate of 1 per cent on the first €1 million of the value of residential property and at 2 per cent on the excess over this amount.7 The stamp duty rate for non-residential property increased from 2 to 6 per cent from December 2017. Non-residential property includes land, sites, commercial buildings, and interests in and options over land.
In 2017, a rebate scheme was introduced for land acquired for residential development. The rebate scheme provides that where a transfer is subject to 6 per cent stamp duty, a 4 per cent rebate may be available where residential units are built on the land.8 To obtain this rebate, there are a number of conditions, including that the construction must commence within 30 months of the acquisition and must complete within two years. When the development is complete, at least 75 per cent of the site must be used for residential dwellings. Where these and other conditions are met, the land is effectively subject to a net 2 per cent rate (the initial 6 per cent charged minus the 4 per cent rebate).
Stamp duty may also arise on the lease of real estate at rates from 1 to 12 per cent of the annual rent depending on the length of the lease. This stamp duty is payable by the tenant.
VAT may arise on real estate. The Irish VAT regime is based on EU law. Due to the nature of the assets class, the rules on VAT on property are complex and require a detailed review of a number of factors including the nature of the property, when it was acquired or developed, and whether VAT was recovered on its acquisition or development. In general terms:
- a VAT rate of 13.5 per cent applies to the sale of newly developed property;
- 'old' property (generally property that has not been developed in the last five years) is not subject to VAT unless the parties agree to 'opt to tax' the sale, when a VAT rate of 13.5 per cent applies;
- the letting of property is exempt from VAT, but the landlord may 'opt to tax' the rents in certain circumstances (i.e., for non-residential lettings), and in such circumstances VAT at 23 per cent applies; and
- the purchase of property as part of a business that is capable of being operated on an independent basis, qualifying for transfer of business relief, should not be subject to VAT, although there may be ongoing VAT implications for the purchaser, and this is applied widely to the sale of the landlord's interest in most tenanted property.
The ability of the purchaser or tenant to recover VAT arising on the acquisition or lease of a property is dependent on the VAT status of the purchaser or tenant and their planned use of the property.
Other indirect taxes
Local property tax applies to residential property only and generally applies at a rate between 0.18 to 0.25 per cent of the value of the property. The first valuation date on the introduction of the local property tax was 1 May 2013 and these valuations continue to be applicable. There are some exemptions from this tax.
Commercial rates are levied by local authorities in respect of commercial premises. The level of rates is set by local authorities annually.
The vacant site levy applies to certain residential or regeneration sites that have been placed on registers maintained by local authorities. In 2018, the levy applied at a rate of 3 per cent per annum of the market value, rising to 7 per cent per annum of the market value in 2019 and in subsequent years.
Capital acquisitions tax (CAT) may apply to a gift or inheritance of Irish property regardless of the place of residence, ordinary residence or domicile of the parties. The person who receives the gift or inheritance has primary liability for CAT.
CAT is levied at a rate of 33 per cent above certain tax-free thresholds. The appropriate tax-free threshold is dependent upon (1) the relationship between the donor and the donee and (2) the aggregation of the values of previous gifts and inheritances received by the donee from persons within the same group threshold. Gifts and inheritances passing between spouses are exempt from CAT. Children have a tax-free threshold of €320,000 in respect of taxable gifts or inheritances received from their parents.
iv Acquisition of shares in a real estate company
Stamp duty on shares in an Irish incorporated company normally applies at a rate of 1 per cent. The transfer of shares in a foreign incorporated company is generally exempt from Irish stamp duty. There was, therefore, historically a mismatch in the stamp duty rate arising on the acquisition of real estate companies (at 1 per cent or exempt for foreign companies) and real estate assets (6 per cent).
However, in 2017, an anti-avoidance provision was introduced to prevent those seeking to acquire Irish non-residential real estate from obtaining lower stamp duty rates by acquiring shares conferring a controlling interest in real estate-owning companies, rather than the real estate itself. Where the anti-avoidance provision applies, the rate applicable to the acquisition of shares in a real estate company will be 6 per cent.9
The increased charge will not apply where the underlying investment is residential property. Accordingly, transfers of shares in Irish incorporated companies that hold residential property will continue to be charged at 1 per cent.
The increased rate applies where two conditions are satisfied:
- the control test – there is a transfer of shares that derive their value, or the greater part of their value, directly or indirectly, from real estate situated in Ireland that is not residential property and the transfer results in a change in the person or persons having direct or indirect control over the real estate concerned; and
- the purpose test – it is reasonable to consider that the real estate in question was:
- acquired by the company with the sole or main aim of realising a gain from its disposal;
- was or is being developed by the company with the sole or main aim of realising a gain from its disposal; or
- was held by the company as trading stock.
Shares in a non-Irish incorporated company are generally outside the scope of Irish stamp duty but under this new regime stamp duty is payable on transfers of shares in a non-Irish incorporated company where the control and purpose test are both satisfied. Similarly, transfers of shares or units in Irish regulated funds are generally exempt but stamp duty may apply to transfers of units or shares in those funds where these criteria are met.
A rebate of 4 per cent may be available where the property is developed for residential purposes after acquisition if the development commences within 30 months of the acquisition and a number of other conditions are satisfied. In this scenario, the shares are effectively subject to a net 2 per cent rate: the initial 6 per cent charged minus the 4 per cent rebate (see Section II.iii, 'Stamp duty').
There is no Irish VAT on the acquisition of shares in a company.
Capital gains tax on disposal of shares
As mentioned above disposals of shares deriving their value from Irish real estate held as an investment asset are subject to capital gains tax at 33 per cent regardless of whether the vendor is Irish resident10 and 15 per cent withholding tax may apply (see Section I.i, 'Direct taxes').
Other than dividends from REITs (dealt with below) there are no special rules applicable in respect of dividends from real estate companies and such dividends are subject to Irish tax in the same way as other companies.
Dividends paid by an Irish tax resident real estate company will, in the absence of one of many exemptions, be subject to Irish dividend withholding tax (DWT) at a rate of 20 per cent.11 Full exemptions exist for dividends paid to residents of an Irish treaty country and companies controlled by such residents, subject to filing a form. For shareholders that cannot rely on one of Ireland's domestic law exemptions from DWT, it may be possible for such shareholders to rely on the provisions of a double tax treaty to which Ireland is party, to reduce the rate of DWT.
A shareholder that is not resident or ordinarily resident in Ireland and that is entitled to an exemption from DWT generally has no liability to Irish income tax on a dividend from an Irish tax resident company. An exception to this position may apply if the shareholder holds shares in an Irish tax-resident company through a branch or agency in Ireland through which a trade is carried on.
Irish tax resident corporate investors may receive dividends gross, subject to completion of the appropriate declaration. Irish resident closely held companies may be subject to an additional surcharge of 20 per cent.
Certain pension funds, charities and investment undertakings may be exempt from tax on the dividend and may receive dividends gross, subject to completion of the appropriate declarations.
Capital acquisitions tax
CAT could apply to a gift or inheritance of Irish shares in an Irish incorporated company irrespective of the place of residence, ordinary residence or domicile of the parties. The person who receives the gift or inheritance has primary liability for CAT.
III REGULATED REAL ESTATE INVESTMENT VEHICLES
i Regulatory framework
Irish undertakings for collective investment in transferable securities (UCITS) are governed by the EU UCITS Directive and related regulations that have been enacted into Irish law. The managers of Irish alternative investment funds (AIFs), which are non-UCITS investment undertakings, are regulated under the EU Alternative Investment Fund Managers Directive. The Central Bank of Ireland is responsible for the authorisation and supervision of regulated investment funds and investment managers.
ii Overview of the different regulated investment vehicles
In Ireland, there are different types of regulated vehicles that can be used for investment in real estate.
Irish collective asset-management vehicle
This is a relatively new type of investment vehicle introduced in 2015. The ICAV is specifically designed for Irish investment funds and offers a more flexible corporate structure than investment companies.
As ICAVs are both registered with and authorised by the Central Bank, they are not subject to legislation affecting ordinary companies but rather benefit from a scheme tailor-made for investment vehicles. Another notable advantage of ICAVs over investment companies are that ICAVs are capable of 'checking the box' for US tax purposes, meaning that US investors can avoid being subject to two levels of taxation in respect of the fund. In addition, as they are not governed by the Companies Act 2014, ICAVs are not required to spread their investment risk.
An ICAV can either be managed by an external management company or be a self-managed entity, and can be used to establish both a UCITS and an AIF but an AIF must be used for property investments.
Variable capital investment company
Prior to the introduction of the ICAV investment companies had been the most common structure used by funds established in Ireland. Existing investment companies have the option of converting to an ICAV under the 2015 Act.
This structure is generally governed by the Companies Act 2014 and creates a public limited company in which the investors enjoy limited liability. The investors hold shares in the company, which owns the investments in its own right. It is managed by the board of directors for the benefit of the shareholders (the investors), with the aim of the collective investment of its funds and spreading the investment risk.
An investment company can be established as either a UCITS or an AIF but an AIF must be used for property investments.
A unit trust operates as an investment fund established under a trust deed made between the management company and the trustee, where the latter is the legal owner of the fund's assets and the investors are each entitled to an undivided beneficial interest in the fund. Unit trusts are required to have a management company, which is charged with the management of the trust (though in practice this duty is often delegated to third-party service providers).
As a unit trust does not have a separate legal personality, it cannot enter into contracts and cannot be sued. However, the investors have similar rights to shareholders in that they are entitled to attend and vote at meetings on matters affecting the fund.
As the trust structure is not generally recognised in civil law jurisdictions, this model is more popular with investors from Ireland, the United Kingdom or countries outside of continental Europe.
Unit trusts can be established as either a UCITS or an AIF but an AIF must be used for property investments.
Common contractual fund
As the name suggests, the common contractual fund (CCF) is a contractual agreement established under a deed whereby the investors are treated as co-owners of the fund assets, as opposed to owning units in the fund that itself owns the investments.
Similar to the structure of a unit trust, this investment vehicle does not create a separate legal personality but rather the investors own 'units' in the CCF. It is also a requirement that a management company is put in place to manage the fund.
The chief distinguishing feature of a CCF is that it is transparent for Irish legal and tax purposes, and the investors are treated as directly owning a proportionate share of the investments. However, this tax transparency will not be available to individual investors. As such, it is favoured by institutional investors and investment managers as it provides the advantages of asset pooling but without the increased exposure to higher withholding tax on the investments.
A CCF can be established as either a UCITS or an AIF but an AIF must be used for property assets.
Investment limited partnership
An ILP is a legal partnership of two or more persons that has as its principal business investment in different kinds of property. Similar to a CCF, this is a tax-transparent structure and the individual partners are treated as owning a share in the underlying investment in the proportions agreed between them in the partnership deed.
One partner, known as the limited partner, is treated as a shareholder in a company while another partner, known as the general partner, is charged with managing the fund. The ILP does not create a separate legal personality and, as such, the profits of the fund belong to the partners. This is seen as a considerable advantage of this structure as the individual partners are entitled to benefit from the tax reliefs available to the partnership.
An ILP can only be structured as an AIF.
iii Tax payable on acquisition of real estate assets
As regards the tax payable on the acquisition of real estate assets by any of the regulated investment vehicles listed above, stamp duty and VAT will apply as they would to an individual or a company. The application of these taxes is not affected by their regulated status.
Similarly, capital gains tax at the rate of 33 per cent will apply to any chargeable gain made by the vendor in the normal way.
iv Tax regime for the investment vehicle
ICAVs, investment companies and unit trusts can be dealt with together, while different rules apply for CCFs and an ILP.
Taxation of ICAVs, investment companies and unit trusts
At the fund level, these investment vehicles should be exempt from tax on their income and gains, making them tax-neutral.12 However, there are certain chargeable events on which exit tax will be imposed.
The acquisition of units in these investment vehicles are generally exempt from stamp duty. Where, however, the fund is regarded as an Irish real estate fund (IREF), a charge of stamp duty will apply at the rate of 6 per cent of the acquisition price if there is a change of control (see Section II.iv).
These funds are also exempt from VAT for most of their fund-related services.
As regards withholding taxes:
- distributions made by investment funds are not liable to dividend withholding tax; and
- deposit interest retention tax (DIRT) shall not apply to interest on deposits held by investment undertakings.
Taxation of CCFs and ILPs
As the CCF and the ILP is considered to be transparent for Irish tax purposes provided that the unit holders are institutional investors, it is not itself subject to any taxes but rather the investors themselves will be so liable as if they hold the real estate directly.
CCFs are also exempt from VAT for fund-related services.
This tax regime provides exemptions from the following taxes:
- dividend withholding tax on dividends received and payments made by the CCF; and
- DIRT on deposits held.
ILPs are subject to a similar regime.
v Tax regime for investors
As regards the tax regime for investors, the first three categories of ICAVs, investment companies and unit trusts can be dealt with together, while different rules apply for CCFs and ILPs.
Taxation of investors in ICAVs, investment companies and unit trusts
Generally speaking, where the investor is not resident in Ireland, there will be no tax withheld on any distributions or gains arising from the fund provided that the appropriate declarations are in place.
However, under legislation introduced in 2017, where the fund meets the definition of an IREF, a withholding tax of 20 per cent will apply on the occurrence of certain defined IREF taxable events.13 A purchaser of IREF units will also be required to withhold 20 per cent of the gross proceeds regardless of whether or not a gain has arisen.
Where a shareholding in excess of 10 per cent is held, relief that would ordinarily be available under a double taxation agreement between Ireland and the country in which the investor is resident will not be available in respect of this withholding tax. Capital gains tax, on the other hand, will not be charged on the disposal or redemption of an IREF investment or on the disposal of an asset that derives its value from an IREF by a non-resident investor.
A regulated fund will be considered to be an IREF where more than 25 per cent of its net asset value consists of Irish land or buildings, or where it would be reasonable to consider that its main purpose (or one of its main purposes) is to acquire certain assets linked to Irish real estate.
Certain EU resident entities including pension funds, investment undertakings, life assurance companies, charities, etc. are generally exempt from the withholding taxes mentioned above. There are, however, anti-avoidance provisions that can bring these entities within the IREF withholding tax provisions.
Where the investor is resident in Ireland, the applicable tax regime will depend on the nature of the investor (whether an individual or a corporate entity) and the nature of the return (whether distributed income or a gain on a disposal).
For fund investments by an individual investor, a withholding tax of 41 per cent will apply to any income received by the individual from an investment in a fund. Where an interest in the fund is disposed of by the individual, an exit tax of 41 per cent will apply. This exit tax will apply, regardless of any disposal, every eight years so long as the individual holds shares in the fund.
Once this withholding tax has been applied, there are no further tax payment or filing requirements by the individual in respect of that income or gain.
Where the IREF is structured so that the investor, or unit holder, in question is capable of influencing the business of the IREF and deciding how it invests its funds, whether directly or indirectly, it would not be classified as a personal portfolio IREF in respect of that investor. Where the investor is deemed to be connected to the fund in this way, punitive rates of tax at 60 per cent are imposed on income and gains received by the investor from the fund.
As regards a corporate investor, a withholding tax of 25 per cent will apply to any income received by the company from an investment in a fund, provided that a declaration stating the investor is a company has been given. Where an interest in the fund is disposed of by the company, an exit tax of 25 per cent will apply. This exit tax will apply regardless of any disposal every eight years so long as the company holds shares in the fund.
Once this withholding tax has been applied there are no further tax payment requirements imposed on the company in respect of that income or gain.
Certain Irish entities, including pension funds, investment undertakings, life assurance companies and charities, are generally exempt from tax including the withholding taxes mentioned above. There are, however, anti-avoidance provisions that can bring these entities within the IREF withholding tax provisions.
Taxation of investors in CCFs and ILPs
As mentioned above, given the tax transparent nature of these funds, the investors will pay tax on the investments as they would had they directly invested in the real estate themselves.
IV REAL ESTATE INVESTMENT TRUSTS AND SIMILAR STRUCTURES
i Legal framework
A REIT is a company that has as its main activity the ownership and management of real estate assets, which can either be located in Ireland or overseas. Owing to the public nature of REITS and the costs associated with the listing of shares, there are only a small number in existence.
A REIT must be an Irish incorporated company from the outset. It may be a single public company or a group comprising a public company parent and its subsidiaries. The REIT must have its shares listed on the main market of a recognised EU stock exchange. The Irish Stock Exchange applies a bespoke set of listing rules specific to REITs. The Irish Stock Exchange's requirements are broadly aligned with similar specialist REIT listing rules applied in the UK.
REITs are not currently regulated under Irish collective investment scheme legislation. However, external managers of existing REITs in Ireland are considered to be within the scope of the Alternative Investment Fund Managers Directive (AIFMD) and REITs are thereby indirectly affected by regulation from the Central Bank of Ireland.
Each share issued by a REIT should either form part of its ordinary share capital or be a preference share with no voting rights attached to it. No more than one class of ordinary share shall be issued by a REIT and other forms of issued share capital are not permitted.
ii Requirements to access the regime
The tax regime for REITS was introduced in 201314 and there are several requirements that a company in question must meet in order to qualify as a REIT:
- The company must be Irish incorporated from the outset and be an Irish resident company (and not resident anywhere else).
- The company must submit notice to the Irish Revenue Commissioners in the prescribed form declaring itself to be a REIT. In the case of a REIT with a group structure, the company must nominate which wholly owned members of the group shall also be deemed to be REITs. The legislation contains the concept of a group REIT and members of a group can be treated as a REIT if they meet the legislative requirements overall as a group.
- The company must reasonably expect that by the end of the accounting period in which it gives the notice referred to above, the following conditions will be met:
- that it will derive at least 75 per cent of its aggregate income from a real estate rental business;
- that it will hold at least 75 per cent of its assets (by market value) in its real estate rental business and this includes proceeds of a disposal of real estate made by the REIT within the previous two years;
- the company must maintain a ratio whereby its property income must be at least 1.25 times the amount of its property financing costs. If it does not maintain such a ratio the REIT will be liable to corporation tax at the higher rate on a sum equal to the amount by which its property financing costs would have to be reduced to achieve the 1.25:1 ratio. 'Property income' in relation to a company or group, means the property profits of the company or group, as reduced by the property net gains of the company or group, (where property net gains arise) or increased by the property net losses of the company or group (where property net losses arise);
- the company must maintain a maximum loan-to-value ratio of 50 per cent, so the REIT may only borrow up to 50 per cent of the market value of its assets; and
- subject to Irish company law requirements, the company must distribute by way of dividend at least 85 per cent of its property rental income for each accounting period, on or before its tax return filing date (which is normally approximately nine months from the end of the particular accounting period).
- By the time of the company's third anniversary of having become a REIT, it must:
- have its shares listed on the main market of a recognised stock exchange in an EU Member State;
- not be a 'close-company' (controlled by five or fewer participants), although a REIT controlled by certain qualifying investors, including certain investment undertakings, Irish pensions and charities, will not be regarded as failing this requirement; and
- have a property rental business of at least three properties, with no one property accounting for more than 40 per cent of the market value of the total qualifying portfolio.
iii Tax regime
REITS are recognised as providing investors with a tax-efficient structure to invest in real estate as they eliminate the traditional double layer of taxation that normally exists where profits are taxed at both company level and at shareholder level. Provided the REIT meets the various conditions of the legislation as outlined above, the REIT will not be liable to corporate tax on income and capital gains arising from its property rental business.
The shareholders can dispose of their shares in the listed company at any time, without the costs and delays that would inevitably occur in the sale of individually owned property.
The normal rate of 1 per cent stamp duty will generally be payable on a transfer of shares in a REIT. Where there is a change of control of the REIT, the specific circumstances should be examined to assess whether the higher 6 per cent rate would apply.
If a REIT acquires and develops an asset to the extent that the cost of development exceeds 30 per cent of the market value of the asset at the time the development commenced, and if it disposes of that asset within three years of completion of the development, then the corporation tax exemptions applicable to a REIT do not apply to profits from this activity.
Moreover, if the REIT deals or disposes of property in such a manner that indicates the company in question is dealing in the property rather than investing, any profits arising from such a disposal may be taxable.
A REIT must distribute 85 per cent of its property income to its shareholders before the return filing date for the relevant accounting period. If it does not comply, it shall be charged corporation tax at 25 per cent of the difference between the amount of property income distributed in respect of the accounting period and the amount equal to 85 per cent of the property income of the accounting period. However, if the company was restricted from making the requisite distribution by reason of any provision of the Companies Act, then the revenue authorities will have regard to that in determining the amount (if any) chargeable to corporation tax by virtue of the Section.
A REIT will be liable for additional tax if it pays a dividend to or for the benefit of a holder of excessive rights, namely, a person holding more than 10 per cent of the issued shares of the REIT. This tax charge will not be incurred if the REIT has taken 'reasonable steps' to avoid paying dividends to such a shareholder.
The tax exemptions available to a REIT arise on the income and the chargeable gains from its property rental business. These tax exemptions will not apply to any residual element of the business. If there are any residual parts of the business that carry on alternative activities, they will be taxed in the normal manner.
It is possible for an existing company to convert to a REIT. In such a scenario, the company converting to a REIT will be deemed, for capital gains purposes, to have sold its assets on the day it converted and will be liable to capital gains tax on any inherent gains up to that point.
iv Tax regime for investors
The REIT is exempt from Irish corporation tax, but the distributions and gains for underlying investors are taxable.
Corporate investors who are Irish resident may receive distributions gross, subject to the completion of the appropriate declaration but will in any event be liable to 25 per cent corporation tax on these distributions from the REIT. They will be liable to capital gains tax at a rate of 33 per cent on a disposal of shares in the REIT.
Certain Irish residents, such as pension schemes or charities investing in the REIT, may receive distributions gross, subject to completion of the appropriate declaration.
Non-resident investors will be subject to 20 per cent DWT on distributions from the REIT. The normal DWT exemptions available to certain non-resident shares do not apply to dividends paid by REITs and therefore all dividends by REITs to non-resident investors will be subject to 20 per cent DWT. Ireland has an extensive tax treaty network of double taxation treaties which may enable some investors to reclaim some of this dividend withholding tax or otherwise claim credit against taxes in their country of residence.
Non-resident investors should be exempt from Irish capital gains tax on any disposal of their shares in the REIT, as a result of the REIT being a publicly listed company.
CAT could apply to a gift or inheritance of shares in an Irish incorporated company irrespective of the place of residence, ordinary residence or domicile of the parties. The person who receives the gift or inheritance has primary liability for CAT.
CAT is levied at a rate of 33 per cent above certain tax-free thresholds. The appropriate tax-free threshold is dependent upon the relationship between the donor and the donee, and the aggregation of the values of previous gifts and inheritances received by the donee from persons within the same group threshold. Gifts and inheritances passing between spouses are exempt from CAT. Children have a tax-free threshold of €320,000 in respect of taxable gifts or inheritances received from their parents.
v Forfeiture of REIT status
The tax exemptions that apply to the qualifying REIT are lost in respect of profits on the sale of property that has been redeveloped (by spending greater than 30 per cent of the property's open market value on works, as discussed above) and sold within three years. Profits from the non-property rental business (if any) are also subject to normal taxation.
A REIT is required to make an annual statement to the revenue authorities confirming that the conditions have been met throughout that accounting period. If the REIT fails to do so, or makes an incomplete statement, it will be liable to pay a penalty and the company will be treated as having ceased to be a REIT.
Even if the REIT breaches certain conditions, if it can satisfy the revenue authorities that it will remedy the breach and outline how it plans to do so, it can remain a qualifying REIT. However, if within a reasonable time limit as imposed by the Revenue, the REIT fails to remedy the breach, the Revenue will then treat the company as having ceased to be a REIT.
A REIT can voluntarily terminate its status by giving notice in writing specifying a date from which it will cease to be a REIT.
Where a company ceases to be treated as a REIT for corporation tax purposes, the company's assets shall be deemed to have been disposed of by the REIT immediately before the cessation date at market value on that date and then immediately reacquired post cessation.
V INTERNATIONAL AND CROSS-BORDER TAX ASPECTS
i Tax treaties
Ireland has an extensive double tax treaty network, having signed treaties with 74 countries. Ireland's double tax treaties generally follow the OECD model treaty, but do depart from its provisions in some respects, particularly in the case of the older Irish treaties.
Most Irish treaties follow Article 6 of the OECD model treaty, which deals with immoveable property. It provides that income from real estate can be subject to tax in the state in which the property is located and that the other contracting state can also tax this income, but should grant relief from double taxation under the relief of double taxation article.
Article 13 of the OECD model treaty is also relevant for real estate purposes. It deals with the taxation of capital gains and provides that the source country retains the right to tax chargeable gains from the alienation of immovable property situated in the state. Most Irish treaties follow this article. As noted above, the Revenue consider that debt secured on Irish land is subject to capital gains tax on disposal by a non-Irish resident. It is unclear whether this is consistent with the OECD concept of 'immovable property'.
Under the model capital gains article, where the country in which the real estate is situated is permitted to tax a capital gain, the taxpayer's country of residence should provide relief from double taxation under the double taxation article of the model treaty. Most Irish treaties include a provision allowing the source country to tax gains from the disposal of shares that derive the greater part of their value from Irish property.
On 29 January 2019, Ireland deposited its instrument of ratification of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) with the OECD, together with a list of reservations and notifications.
Some of the key changes to Ireland's double tax treaties under the MLI are the adoption of:
- a principal purpose test and specific anti-avoidance provisions in relation to withholding tax on dividends and certain real estate transactions;
- a tie-breaker test based on mutual agreement to determine tax residence for dual resident entities;
- measures to ensure consistent tax treatment where entities are treated as being transparent or opaque by different countries;
- measures to deal with the avoidance of permanent establishment status; and
- a number of dispute resolution measures, including mandatory binding arbitration, to resolve disputes more efficiently.
Specifically in relation to real estate, Ireland has adopted the anti-avoidance rule in Article 9 (subject to reservations mainly in respect of items already covered by Ireland's double tax agreements). Article 9 deals with treaty provisions that provide that gains derived by a resident of a treaty state from disposing shares or other rights may be taxed in the other treaty country, where those shares and rights derive more than a certain part of their value from immovable property. The article states that these provisions shall apply if the relevant value threshold is met at any time during the 365 days preceding the disposal. Irish domestic law subjects a non-resident to capital gains tax on the disposal of shares that derive the greater part of their value from Irish land. This anti-avoidance provision in the MLI is designed to prevent companies from artificially avoiding capital gains tax on the sale of real property by allowing tax authorities a form of look-back rule prior to the disposal. Ireland has domestic anti-avoidance rules but not a specific 12-month look-back rule.
ii Cross-border considerations
There are no restrictions on cross-border investment into Ireland such as exchange controls or limits in foreign direct and indirect investment in property.
iii Locally domiciled vehicles investing abroad
Irish investment funds can be efficient vehicles to hold non-Irish real estate. As noted above, if such entities hold non-Irish land they are generally exempt from tax in Ireland.
VI YEAR IN REVIEW
Over the past year, real estate investors have been adapting to significant changes affecting the Irish taxation of real estate transactions, as mentioned earlier in this chapter, that have arisen owing to specific targeted public policy positions. These policy positions have been designed to counteract a perceived erosion of the Irish tax base in relation to the holding of Irish real estate by non-residents.
These include the increase in the stamp duty rate on shares deriving their value from certain forms of Irish real estate, the introduction of withholding tax for funds deriving their value from certain forms of Irish real estate and the limitation of the interest deductions available to Section 110 companies for certain loans secured on Irish real estate.
In addition Ireland has adopted the MLI (with some reservations) and a number of potentially important developments that may affect Irish real estate transactions are expected over the next 12 months, including the possible introduction of an interest limitation rule in accordance with ATAD.
The application of these new rules requires specific consideration in relation to new and existing real estate transactions and may affect structuring decisions. ICAVs continue to be a popular structure for large real estate investments, despite the IREF rules, because of the gross roll-up feature, as are non-Irish tax resident companies owing to the lower tax rate on rental income.
Like most EU and OECD countries, Ireland's tax regime is undergoing significant changes as a result of the OECD BEPS initiatives and related EU directives. In this context, a number of potentially important developments that may affect Irish real estate transactions are expected in 2019. These include Ireland's adoption of ATAD and possible changes to the Irish transfer pricing regime, on which there have been public consultations in early 2019 and legislation is expected later this year. Anti-hybrid rules required under ATAD are expected to be introduced with effect from 1 January 2020 and the potential impact on specific Irish real estate transactions will not be known until the legislation is published. Under current Irish legislation, non-trading transactions (including the rental of an investment property) are outside the scope of Irish transfer pricing rules but this may change as part of an overall review of the transfer pricing regime.
The ATAD interest limitation rules are likely to have the greatest impact on Irish real estate investors. As noted earlier, there are currently no specific interest limitation rules in effect in Ireland. The ATAD interest limitation rule seeks to limit the allowable tax deduction for interest to 30 per cent of earnings before interest, tax, depreciation and amortisation (EBIDTA). These interest limitation rules were due to be implemented and take effect from 1 January 2019. However, Ireland has sought a derogation on the basis that it has domestic rules for preventing tax avoidance risks that are 'equally effective' to the 30 per cent ATAD limitation. If accepted by the EU, implementation can be delayed until 1 January 2024. However, if this derogation does not apply to Ireland, it is possible that the interest limitation required under ATAD will be adopted with effect from 1 January 2020 or some other date in advance of 2024.
1 Fintan Clancy and Brian O'Rourke are partners at Arthur Cox.
2 Section 21 of the Taxes Consolidation Act 1997.
3 Section 28 of the Taxes Consolidation Act 1997.
4 Section 21A of the Taxes Consolidation Act 1997.
5 Section 980 of the Taxes Consolidation Act 1997.
6 Section 110(5A) of the Taxes Consolidation Act 1997.
7 First Schedule to the Stamp Duties Consolidation Act 1999.
8 Section 83D of the Stamp Duties Consolidation Act 1999.
9 Section 31C of the Stamp Duties Consolidation Act 1999.
10 Section 29 of the Taxes Consolidation Act 1997.
11 Chapter 8A, Part 6 of the Taxes Consolidation Act 1997.
12 Chapter 1A, Part 27 of the Taxes Consolidation Act 1997.
13 Chapter 1B, Part 27 of the Taxes Consolidation Act 1997.
14 Part 25A of the Taxes Consolidation Act 1997.