CAPITAL GAINS TAX ACT, 1975 (1975_act_20) | IE

ISB Act 1975-08-05

Schedule 1 CAPITAL GAINS TAX ACT, 1975 Open official source

SCHEDULE 1 Computation Rules

Computation Rules

Sections 11 and 51.

PART I

General

Preliminary

1.—(1) No deduction shall be allowable in a computation under this Act more than once from any sum or from more than one sum.

(2) References in this Schedule to sums taken into account as receipts or as expenditure in computing profits, gains or losses for the purposes of the Income Tax Acts shall include references to sums which would be so taken into account but for the fact that any profits or gains of a trade, profession or employment are not chargeable to income tax or that losses are not allowable for those purposes.

(3) In this Part references to income or profits charged or chargeable to tax include references to income or profits taxed or as the case may be taxable by deduction at source.

(4) For the purposes of any computation under this Schedule any necessary apportionments shall be made of any consideration or of any expenditure and the method of apportionment adopted shall, subject to the express provisions of this Schedule, be such method as appears to the inspector or on appeal the Appeal Commissioners to be just and reasonable.

(5) In this Schedule “renewals allowance” has the meaning assigned to it by paragraph 5 (3).

(6) Paragraph 6 and all other provisions for apportioning on a part disposal expenditure which is deductible in computing a gain, are to be operated before the operation of, and without regard to—

(a) section 13 (5) (married persons),

(b) section 28 (replacement of business and other assets),

(c) any other provision making an adjustment to secure that neither a gain nor a loss accrues on a disposal.

Exclusion from consideration for disposals of sums chargeable to income tax

2.—(1) There shall be excluded from the consideration for a disposal of assets taken into account in the computation under this Schedule of the gain accruing on that disposal any money or money's worth charged to income tax as income of, or taken into account as a receipt in computing income, profits, gains or losses for the purposes of the Income Tax Acts of, the person making the disposal

Provided that the exclusion from consideration under this subparagraph shall not be taken as applying to a computation in accordance with the provisions of Case I of Schedule D for the purpose of restricting relief in respect of expenses of management under section 214 of the Income Tax Act, 1967.

(2) Subparagraph (1) shall not be taken as excluding from the consideration so taken into account any money or money's worth which is taken into account in the making of a balancing charge under Part XVI of the Income Tax Act, 1967.

(3) This paragraph shall not preclude the taking into account in a computation under this Schedule, as consideration for the disposal of an asset, of the capitalised value of a rent (as in a case where rent is exchanged for some other asset), or of a right of any other description to income or to payments in the nature of income over a period, or to a series of payments in the nature of income.

(4) In this paragraph “rent” includes any rent charge, fee farm rent and any payment in the nature of a rent.

Expenditure: general provisions

3.—(1) Subject to the provisions of this Act, the sums allowable as a deduction from the consideration in the computation under this Schedule of the gain accruing to a person on the disposal of an asset shall be restricted to—

(a) the amount or value of the consideration, in money or money's worth, given by him or on his behalf wholly and exclusively for the acquisition of the asset, together with the incidental costs to him of the acquisition or, if the asset was not acquired by him, any expenditure wholly and exclusively incurred by him in providing the asset,

(b) the amount of any expenditure wholly and exclusively incurred on the asset by him or on his behalf for the purpose of enhancing the value of the asset, being expenditure reflected in the state or nature of the asset at the time of the disposal, and any expenditure wholly and exclusively incurred by him in establishing, preserving or defending his title to, or to a right over, the asset,

(c) the incidental costs to him of making the disposal.

(2) For the purposes of this paragraph and for the purposes of all other provisions of this Act, as respects the person making the disposal, the incidental costs to him of the acquisition of the asset or of its disposal shall consist of expenditure wholly and exclusively incurred by him for the purposes of the acquisition or, as the case may be, the disposal, being fees, commission or remuneration paid for the professional services of any surveyor or valuer, or auctioneer, or accountant, or agent, or legal adviser and costs of transfer or conveyance (including stamp duty) together—

(a) in the case of the acquisition of an asset, with costs of advertising to find a seller, and

(b) in the case of a disposal, with costs of advertising to find a buyer and costs reasonably incurred in making any valuation or apportionment required for the purposes of the computation under this Schedule, including in particular expenses reasonably incurred in ascertaining market value where required by this Act.

(3) (a) Where—

(i) a company incurs expenditure on the construction of any building, structure or works, being expenditure allowable as a deduction under subparagraph (1) in computing a gain accruing to the company on the disposal of the building, structure or works, or of any asset comprising it,

(ii) that expenditure was defrayed out of borrowed money, and

(iii) the company charged to capital all or any part of the interest on that borrowed money referable to a period ending on or before the disposal,

the sums so allowable under the said subparagraph (1) shall include the amount of that interest charged to capital except in so far as such interest has been taken into account for the purposes of relief under the Income Tax Acts, or could have been so taken into account but for an insufficiency of income or profits or gains.

(b) Subject to clause (a), no payment of interest shall be allowable as a deduction under this paragraph.

(4) Without prejudice to the provisions of paragraph 4, there shall be excluded from the sums allowable as a deduction under this paragraph any premium or other payments made under a policy of insurance of the risk of any kind of damage or injury to, or loss or depreciation of, the asset.

(5) In the case of a gain accruing to a person on the disposal of, or of a right or interest in or over, an asset to which he became absolutely entitled as legatee or as against the trustees of settled property—

(a) any expenditure within subparagraph (2) incurred by him in relation to the transfer of the asset to him by the personal representatives or trustees, and

(b) any such expenditure incurred in relation to the transfer of the asset by the personal representatives or trustees,

shall be allowable as a deduction under this paragraph.

(6) Subject to the provisions of this Act as regards double taxation relief, the tax chargeable under the law of any country outside the State on the disposal of an asset which is borne by the person making the disposal shall be allowable as a deduction in the computation under this Schedule.

(7) There shall be excluded from the computation under this Schedule any expenditure which has been or is to be met directly or indirectly by any government, by any board established by statute or by any public or local authority whether in the State or elsewhere.

Exclusion of expenditure by reference to income tax

4.—(1) There shall be excluded from the sums allowable under paragraph 3 as a deduction any expenditure allowable as a deduction in computing the profits or gains or losses of a trade or profession for the purposes of income tax or allowable as a deduction in computing any other income or profits or gains or losses for the purposes of the Income Tax Acts and any expenditure which, although not so allowable as a deduction in computing any losses, would be so allowable but for an insufficiency of income or profits or gains; and this subparagraph applies irrespective of whether effect is or would be given to the deduction in computing the amount of tax chargeable or by discharge or repayment of tax or in any other way.

(2) Without prejudice to the provisions of subparagraph (1), there shall be excluded from the sums allowable under paragraph 3 as a deduction any expenditure which, if the assets, or all the assets to which the computation relates, were, and had at all times been, held or used as part of the fixed capital of a trade the profits or gains of which were chargeable to income tax would be allowable as a deduction in computing the profits or gains or losses of the trade for the purposes of the Income Tax Acts.

Restriction of losses by reference to capital allowances and renewals allowances

5.—(1) Paragraph 4 shall not require the exclusion from the sums allowable as a deduction under paragraph 3 of any expenditure as being expenditure in respect of which a capital allowance or renewals allowance is made, but in the computation under this Schedule of the amount of a loss accruing to the person making the disposal, there shall be excluded from the sums allowable as a deduction any expenditure to the extent to which any capital allowance or renewals allowance has been or may be made in respect of it.

(2) If the person making the disposal acquired the asset—

(a) by a transfer by way of sale in relation to which an election under section 299 (4) of the Income Tax Act, 1967, was made, or

(b) by a transfer to which section 277 (5) or 278 of that Act applies,

(being provisions under which a transfer is treated for the purposes of capital allowances as being made at written down value), this paragraph shall apply as if any capital allowance made to the transferor in respect of the asset had (except so far as any loss to the transferor was restricted under those provisions) been made to the person making the disposal (that is, the transferee); and where the transferor acquired the asset by such a transfer, capital allowances which by virtue of this subparagraph can be taken into account in relation to the transferor shall also be taken into account in relation to the transferee (that is, the person making the disposal), and so on for any series of transfers before the disposal.

(3) In this paragraph “renewals allowance” means a deduction allowable in computing profits or gains or losses for the purposes of the Income Tax Acts by reference to the cost of acquiring an asset in replacement of another asset, and for the purposes of this Schedule a renewals allowance shall be regarded as a deduction allowable in respect of the expenditure incurred on the asset which is being replaced.

(4) The amount of capital allowances to be taken into account under this paragraph in relation to a disposal includes any allowances falling to be made by reference to the event which is the disposal, and there shall be deducted from the amount of the allowances the amount of any balancing charge to which effect has been or is to be given by reference to the event which is the disposal, or any earlier event, and of any balancing charge to which effect might have been so given but for the making of an election under section 273 of the Income Tax Act, 1967 (option in case of replacement of machinery or plant).

Part disposals

6.—(1) Where a person disposes of an interest or rights in or over an asset and, generally wherever on the disposal of an asset, any description of property derived from that asset remains undisposed of, the sums which under clauses (a) and (b) of paragraph 3 (1) are attributable to the asset shall, both for the purposes of the computation under this Schedule of the gain accruing on the disposal and for the purpose of applying this Schedule in relation to the property which remains undisposed of, be apportioned.

(2) Such portion of the expenditure shall be allowable as a deduction in computing under this Schedule the amount of the gain accruing on the disposal as bears the same proportion to the total of the said sums as the value of the consideration for the disposal bears to the aggregate of the said value and the market value of the property which remains and the balance of the expenditure shall be attributed to the property which remains undisposed of.

(3) Any apportionment to be made in pursuance of this paragraph shall be made before operating the provisions of paragraph 5, and if, after a part disposal, there is a subsequent disposal of an asset the capital allowances or renewals allowances to be taken into account in pursuance of that paragraph in relation to the subsequent disposal shall, subject to the next following subparagraph, be those referable to the sums which under clauses (a) and (b) of paragraph 3 (1) are attributable to the asset whether before or after the part disposal, but those allowances shall be reduced by the amount (if any) by which the loss on the earlier disposal was restricted under the provisions of that paragraph.

(4) This paragraph shall not be taken as requiring the apportionment of any expenditure which, on the facts, is wholly attributable to the asset or part of the asset which is disposed of, or wholly attributable to the asset or part of the asset which remains undisposed of.

Assets derived from other assets

7.—(1) If and so far as, in a case where assets have been merged or divided or have changed their nature or rights or interests in or over assets have been created or extinguished, the value of an asset is derived from any other asset in the same ownership, an appropriate proportion of the sums allowable as a deduction in respect of the other asset under clauses (a) and (b) of paragraph 3 (1) shall, both for the purpose of the computation of a gain accruing on the disposal of the first-mentioned asset and, if the other asset remains in existence, on a disposal of that other asset, be attributed to the first-mentioned asset.

(2) The appropriate proportion shall be computed by reference to the market value at the time of disposal, of the assets (including rights or interests in or over the assets) which have not been disposed of and the consideration received in respect of the assets (including rights or interests in or over the assets) disposed of.

Wasting assets

8.—(1) In this Schedule “wasting asset” means an asset with a predictable life not exceeding fifty years but so that—

(a) freehold land shall not be a wasting asset whatever its nature, and whatever the nature of the buildings or works on it,

(b) “life”, in relation to any tangible movable property, means useful life, having regard to the purpose for which the tangible assets were acquired or provided by the person making the disposal,

(c) plant and machinery shall in every case be regarded as having a predictable life of less than fifty years, and in estimating that life it shall be assumed that its life will end when it is finally put out of use as being unfit for further use, and that it is going to be used in the normal manner and to the normal extent and is going to be so used throughout its life as so estimated, and

(d) a life interest in settled property shall not be a wasting asset until the predictable expectation of life of the life tenant is fifty years or less, and the predictable life of life interests in settled property and of annuities shall be ascertained from actuarial tables approved by the Revenue Commissioners.

(2) In this Schedule “the residual or scrap value”, in relation to a wasting asset, means the predictable value, if any, which the wasting asset will have at the end of its predictable life as estimated in accordance with this paragraph.

(3) The question what is the predictable life of an asset, and the question what is its predictable residual or scrap value at the end of that life, if any, shall, so far as those questions are not immediately answered by the nature of the asset, be taken, in relation to any disposal of the asset, as they were known or ascertainable at the time when the asset was acquired or provided by the person making the disposal.

Wasting assets: restriction of allowable expenditure

9.—(1) In the computation under this Schedule of the gain accruing on the disposal of a wasting asset, it shall be assumed—

(a) that any expenditure attributable to the asset under paragraph 3 (1) (a), after deducting the residual or scrap value, if any, of the asset, is written off at a uniform rate from its full amount at the time when the asset is acquired or provided, to nothing at the end of its life, and

(b) that any expenditure attributable to the asset under paragraph 3 (1) (b) is written off at a uniform rate from the full amount of that expenditure at the time when that expenditure is first reflected in the state or nature of the asset to nothing at the end of its life.

(2) If any expenditure attributable to the asset under paragraph 3 (1) (b) creates or increases a residual or scrap value of the asset, the residual or scrap value to be deducted under subparagraph (1) (a) shall be the residual or scrap value so created or as so increased.

(3) Any expenditure written off under this paragraph shall not be allowable as a deduction under paragraph 3.

Wasting assets qualifying for capital allowances

10.—(1) Paragraph 9 shall not apply in relation to a disposal of an asset—

(a) which, from the beginning of the period of ownership of the person making the disposal to the time when the disposal is made, is used and used solely for the purposes of a trade or profession and in respect of which that person has claimed or could have claimed any capital allowance in respect of any expenditure attributable to the asset under clause (a) or (b) of paragraph 3 (1), or

(b) on which the person making the disposal has incurred any expenditure which has otherwise qualified in full for any capital allowance.

(2) In the case of the disposal of an asset which, in the period of ownership of the person making the disposal, has been used partly for the purposes of a trade or profession and partly for other purposes, or has been used for the purposes of a trade or profession for part of that period, or which has otherwise qualified in part only for capital allowances—

(a) the consideration for the disposal, and any expenditure attributable to the asset by clause (a) or (b) of paragraph 3 (1), shall be apportioned by reference to the extent to which that expenditure qualified for capital allowances,

(b) the computation under this Schedule shall be made separately in relation to the apportioned parts of the expenditure and consideration,

(c) paragraph 9 shall not apply for the purposes of the computation in relation to the part of the consideration apportioned to use for the purposes of the trade or profession, or to the expenditure qualifying for capital allowances,

(d) if an apportionment of the consideration for the disposal has been made for the purposes of making any capital allowance to the person making the disposal or for the purpose of making any balancing charge on him, that apportionment shall be employed for the purposes of this paragraph, and

(e) subject to clause (d), the consideration for the disposal shall be apportioned for the purposes of this paragraph in the same proportions as the expenditure attributable to the asset is apportioned under clause (a).

Contingent liabilities

11.—No allowance shall be made under paragraph 3—

(a) in the case of a disposal by way of assigning a lease of land or other property, for any liability remaining with, or assumed by, the person making the disposal by way of assigning the lease which is contingent on a default in respect of liabilities thereby or subsequently assumed by the assignee under the terms and conditions of the lease,

(b) for any contingent liability of the person making the disposal in respect of any covenant for quiet enjoyment or other obligation assumed—

(i) as vendor of land, or of any estate or interest in land,

(ii) as a lessor, or

(iii) as grantor of an option binding him to sell land or an interest in land or to grant a lease of land,

(c) for any contingent liability in respect of a warranty or representation made on a disposal by way of sale or lease of any property other than land

Provided that if it is shown to the satisfaction of the inspector that any such contingent liability has become enforceable and is being or has been enforced, such adjustment, whether by way of discharge or repayment of tax or otherwise, shall be made as may be necessary.

Woodlands

12.—(1) In the computation under this Schedule of the gain accruing on the disposal by an individual of woodland, there shall be excluded—

(a) consideration for the disposal of trees growing on the land, and

(b) notwithstanding the provisions of section 8 (2), capital sums received under a policy of insurance in respect of the destruction of or damage or injury to trees by fire or other hazard on such land.

(2) In the computation under this Schedule so much of the cost of woodland shall be disregarded as is attributable to trees growing on the land.

(3) References in this paragraph to trees include references to saleable underwood.

Dealing in marketable securities, commodities, etc.: pooling

13.—(1) Any number of shares of the same class held by one person in one capacity shall for the purposes of this Act be regarded as indistinguishable parts of a single asset (in this paragraph referred to as a holding) growing or diminishing on the occasions on which additional shares of the class in question are acquired, or some of the shares of the class in question are disposed of.

(2) Without prejudice to the generality of subparagraph (1), a disposal of shares in a holding, other than the disposal outright of the entire holding, is a disposal of part of an asset and the provisions of this Act relating to the computation of a gain accruing on a disposal of part of an asset shall apply accordingly.

(3) Shares shall not be treated for the purposes of this paragraph as being of the same class unless they are so treated by the practice of a stock exchange in the State or elsewhere or would be so treated if dealt with on such a stock exchange, but shares shall be treated in accordance with this paragraph notwithstanding that they are identified in some other way by the disposal or by the transfer or delivery giving effect to it.

(4) This paragraph shall apply separately in relation to any shares of a company held by a person to whom they were issued as an employee of the company or of any other person on terms which restrict his rights to dispose of them, so long as those terms are in force, and, while applying separately to any such shares, shall have effect as if the owner held them in a capacity other than that in which he holds any other shares of the same class.

(5) Nothing in this paragraph shall be taken as affecting the manner in which the market value of any asset is to be ascertained.

(6) This paragraph, without subparagraph (3), shall apply in relation to a disposal of any assets as it applies in relation to a disposal of shares, where the assets are of a nature to be dealt in without identifying the particular assets disposed of or acquired.

(7) This paragraph shall not apply in relation to shares held by a person on the 6th day of April, 1974, while that person continues to hold them and, in particular, shall not apply in relation to a disposal of the shares by him.

(8) This paragraph applies in relation to securities as it applies in relation to shares.

(9) This paragraph shall apply subject to the provisions of paragraph 14.

Disposal within four weeks of acquisition

14.—(1) Where the same person in the same capacity disposes of shares of the same class as shares which he acquired within four weeks preceding the disposal, the shares disposed of shall be identified with the shares so acquired within that four weeks.

(2) Where the quantity of shares of the same class disposed of exceeds the quantity of shares of the same class acquired within the period of four weeks preceding the disposal, the excess shall be identified with shares of the same class acquired otherwise than within the period of four weeks.

(3) Where a loss accrues to a person on the disposal of shares and he re-acquires shares of the same class within four weeks after the disposal, that loss shall not be allowable under section 12 otherwise than by deduction from a chargeable gain accruing to him on the disposal of the shares re-acquired

Provided that, if the quantity of shares so re-acquired is less than the quantity so disposed of, such proportion of the loss shall be allowable under section 12 as bears the same proportion to the loss on the disposal as the quantity not re-acquired bears to the quantity disposed of.

(4) In the case of a man and his wife living with him—

(a) subparagraphs (1) and (2) shall, with the necessary modifications, apply where shares are acquired by the one of them and shares of the same class are disposed of within four weeks by the other; and

(b) subparagraph (3) shall, with the necessary modifications, apply also where a loss on the disposal accrues to the one of them and the acquisition after the disposal is made by the other.

(5) This paragraph applies in relation to securities as it applies in relation to shares.

(6) Paragraphs 13, 16 and 20 shall apply subject to subparagraph (1).

Appropriations to and from stock in trade

15.—(1) Where an asset acquired by a person otherwise than as trading stock of a trade carried on by him is appropriated by him for the purposes of the trade as trading stock (whether on the commencement of the trade or otherwise) and, if he had then sold the asset for its market value, a chargeable gain or allowable loss would have accrued to him, he shall be treated as having thereby disposed of the asset by selling it for its then market value.

(2) If at any time an asset forming part of the trading stock of a person's trade is appropriated by him for any other purpose, or is retained by him on his ceasing to carry on the trade, he shall be treated as having acquired it at that time for a consideration equal to the amount brought into the accounts of the trade in respect of it for purposes of income tax on the appropriation or on his ceasing to carry on the trade, as the case may be.

(3) Subparagraph (1) shall not apply in relation to a person's appropriation of an asset for the purposes of a trade if he is chargeable to income tax in respect of the profits of the trade under Case I of Schedule D, and elects that instead the market value of the asset at the time of the appropriation shall, in computing the profits of the trade for purposes of income tax, be treated as reduced by the amount of the chargeable gain or increased by the amount of the allowable loss referred to in that subparagraph, and where the subparagraph does not apply by reason of such an election, the profits of the trade shall be computed accordingly

Provided that if a person making an election under this subparagraph is at the time of the appropriation carrying on the trade in partnership with others, the election shall not have effect unless concurred in by the others.

PART II

Assets Held on the 6th day of April, 1974

Quoted securities

16.—(1) This paragraph applies—

(a) to shares and securities which on the 6th day of April, 1974, had quoted market values on a stock exchange in the State or elsewhere, or which had such quoted market values at any time in the period of six years ending on the 6th day of April, 1974, and

(b) to rights of unit holders in any unit trust (including any unit trust legally established outside the State) the prices of which are published regularly by the managers of the unit trust.

(2) For the purposes of this Act it shall be assumed, wherever relevant, that any assets to which this paragraph applies were sold, and immediately re-acquired, at their market value on the 6th day of April, 1974, by the person who held them on that date.

(3) Subparagraph (2) shall not apply in relation to a disposal of assets—

(a) if on the assumption in that subparagraph a gain would accrue on that disposal to the person making the disposal and either a smaller gain or a loss would so accrue (computed in accordance with the provisions of Part I of this Schedule) if subparagraph (2) did not apply, or

(b) if on the assumption in subparagraph (2) a loss would so accrue and either a smaller loss or a gain would accrue if subparagraph (2) did not apply,

and accordingly the amount of the gain or loss accruing on the disposal shall be computed without regard to the provisions of this Part except that in a case where this subparagraph would otherwise substitute a loss for a gain or a gain for a loss it shall be assumed, in relation to the disposal, that the relevant assets were acquired by the owner for a consideration such that, neither a gain nor a loss accrued to him on making the disposal.

(4) This paragraph shall not apply in relation to a disposal of shares or securities of a company by a person to whom those shares were issued as an employee either of the company or of some other person on terms which restrict his rights to dispose of them.

(5) For the purpose of—

(a) identifying shares or securities held on the 6th day of April, 1974, with shares previously acquired, and

(b) identifying the shares or securities held on that date with shares or securities subsequently disposed of, and distinguishing them from shares or securities acquired subsequently,

so far as that identification is needed for the purposes of subparagraph (3), and so far as the shares or securities are of the same class, shares or securities acquired at an earlier time shall be deemed to be disposed of before shares or securities acquired at a later time.

Sales of land in the State reflecting development value

17.—(1) This paragraph shall apply in relation to a disposal of an asset which is land in the State—

(a) if, but for this paragraph, the expenditure allowable as a deduction in computing under this Schedule the gain accruing on the disposal would include any expenditure incurred before the 6th day of April, 1974, and

(b) if the consideration for the disposal exceeds what the market value of the asset would be if, immediately before the disposal, it had become unlawful to carry out any development (within the meaning of section 3 (1) of the Local Government (Planning and Development) Act, 1963) in, on or over the land other than development of the kinds specified in section 4 (1) of the said Act.

(2) For the purposes of this Act, it shall be assumed in relation to the disposal and, if it is a part disposal, in relation to any subsequent disposal of the asset which is land in the State that the asset was sold by the person making the disposal, and immediately re-acquired by him, at its market value on the 6th day of April, 1974.

(3) Subparagraph (2) shall apply also in relation to any prior part disposal of the asset and, if tax has been charged, or relief allowed, by reference to that part disposal in accordance with any other provision of this Act, all such adjustments shall be made, whether by way of assessment or discharge or repayment of tax as are required to give effect to the provisions of this subparagraph.

(4) Subparagraph (2) shall not apply in relation to a disposal of assets—

(a) if on the assumption in that subparagraph a gain would accrue on that disposal to the person making the disposal and either a smaller gain or a loss would so accrue (computed in accordance with the provisions of Part I of this Schedule) if subparagraph (2) did not apply, or

(b) if on the assumption in subparagraph (2) a loss would so accrue and either a smaller loss or a gain would accrue if subparagraph (2) did not apply,

and accordingly the amount of the gain or loss accruing on the disposal shall be computed without regard to the provisions of this Part except that in a case where this subparagraph would otherwise substitute a loss for a gain or a gain for a loss it shall be assumed, in relation to the disposal, that the relevant assets were acquired by the owner, for a consideration such that neither a gain nor a loss accrued to him on making the disposal.

Apportionment of gain or loss by reference to uniform rate of growth over period of ownership

18.—(1) This paragraph applies subject to the provisions of paragraphs 16 and 17.

(2) On the disposal of assets by a person whose period of ownership began before the 6th day of April, 1974, only so much of any gain accruing on the disposal as is under this paragraph to be apportioned to the period beginning with the 6th day of April, 1974, shall be a chargeable gain.

(3) Subject to the following provisions of this Schedule, the gain shall be assumed to have grown at a uniform rate from nothing at the beginning of the period of ownership to its full amount at the time of the disposal and the portion attributable to the period beginning on the 6th day of April, 1974, shall be determined accordingly.

(4) If any of the expenditure which is allowable as a deduction in the computation under this Schedule of the gain is within paragraph 3 (1) (b)—

(a) the gain shall be attributed to the expenditure, if any, allowable under paragraph 3 (1) (a) as one item of expenditure, and to the respective items of expenditure under paragraph 3 (1) (b) in proportion to the respective amounts of those items of expenditure, taking into account the period which has elapsed between the time when each item of expenditure was first reflected in the value of the asset and the time of disposal,

(b) subparagraph (3) shall apply to the part of the gain attributed to the expenditure under paragraph 3 (1) (a),

(c) each part of the gain attributed to the items of expenditure under paragraph 3 (1) (b) shall be assumed to have grown at a uniform rate from nothing at the time when the relevant item of expenditure was first reflected in the value of the asset to the full amount of that part of the gain at the time of the disposal and the portion of each part of the gain so treated as growing before the 6th day of April, 1974, shall not be chargeable and each portion treated as growing on and after that date shall be chargeable.

(5) In a case within subparagraph (4) where there is no expenditure under paragraph 3 (1) (a) or such expenditure is, compared with any item of expenditure under paragraph 3 (1) (b), disproportionately small having regard to the value of the asset immediately before the subsequent item of expenditure was incurred, the part of the gain which is not attributable to the enhancement of the value of the asset due to any item of expenditure under paragraph 3 (1) (b) shall be deemed to be attributed to expenditure incurred at the beginning of the period of ownership and allowable under paragraph 3 (1) (a), and the part or parts of the gain attributable to expenditure under paragraph 3 (1) (b), shall be reduced accordingly.

(6) In the case of an asset the cost of which cannot be established or which was acquired otherwise than under a bargain at arm's length, the beginning of the period over which a gain, or a part of a gain, is, under subparagraphs (3) and (4), assumed to have grown shall not be earlier that the 6th day of April, 1964, and this subparagraph shall have effect notwithstanding any provision of this Act.

(7) If in pursuance of paragraph 6 the market value of an asset at a date before the 6th day of April, 1974, is to be ascertained, subparagraphs (3) to (6) shall have effect as if that asset had been on that date sold by the owner, and immediately re-acquired by him, at that market value.

(8) If in pursuance of paragraph 6 the market value of an asset at a date on or after the 6th day of April, 1974, is to be ascertained, subparagraphs (3) to (5) shall have effect as if the asset had been on that date sold by the owner, and immediately re-acquired by him, at that market value, and accordingly, the computation of any gain on a subsequent disposal of that asset shall be computed—

(a) by apportioning in accordance with this paragraph the gain or loss over a period ending on the said date (the date of the part disposal), and

(b) by bringing into account the entire gain or loss over the period from the date of the part disposal to the date of subsequent disposal.

(9) For the purposes of this paragraph, the period of ownership of an asset shall, where under paragraph 7 account is to be taken of expenditure in respect of an asset from which the asset disposed of was derived, or where it would so apply if there were any relevant expenditure in respect of that other asset, include the period of ownership of that other asset.

(10) If under this paragraph part only of a gain is a chargeable gain, the proportion in section 25 (3) (private residence) shall be applied to that part, instead of to the whole of the gain.

Election for valuation on the 6th day of April, 1974

19.—(1) If the person making a disposal so elects, paragraph 18 shall not apply in relation to that disposal and it shall be assumed, both for the purposes of computing under this Schedule the gain accruing to that person on the disposal, and for all other purposes both in relation to that person and other persons, that the assets disposed of, and any assets of which account is to be taken in relation to the disposal under paragraph 7, being assets which were in the ownership of the said person on the 6th day of April, 1974, were on that date sold, and immediately re-acquired, by him at their market value on the 6th day of April, 1974.

(2) Subparagraph (1) shall not apply in relation to a disposal of assets to the extent that on the assumption in that subparagraph a loss would accrue on that disposal to the person making the disposal and either a smaller loss or a gain would accrue if the said subparagraph (1) did not apply, but in a case where this subparagraph would otherwise substitute a gain for a loss it shall be assumed, in relation to the disposal, that the relevant assets were acquired by the owner, for a consideration such that, on the disposal, neither a gain nor a loss accrued to the person making the disposal

Provided that nothing in this subparagraph shall be taken as bringing paragraph 18 into operation where an election under subparagraph (1) has been made.

(3) An election under this paragraph is irrevocable.

(4) An election may not be made under this paragraph as respects, or in relation to, an asset the market value of which at a date on or after the 6th day of April, 1974, and before the date of the disposal to which the election relates, is to be ascertained in pursuance of paragraph 6.

(5) An election under this paragraph shall be made by notice in writing to the inspector given within two years from the end of the year of assessment in which the disposal is made or such further time as the Revenue Commissioners may by notice in writing allow.

(6) This paragraph shall not apply to a disposal of an asset on which the person making the disposal has incurred any expenditure which has qualified for any capital allowance or renewals allowance.

Shares, commodities, etc.

20.—(1) This paragraph has effect as respects shares held by any person on the 6th day of April, 1974, other than shares which are to be treated under this Act as if disposed of and immediately re-acquired by him on that date.

(2) This paragraph applies to securities as it applies to shares.

(3) For the purpose of—

(a) identifying the shares so held on the 6th day of April, 1974, with shares previously acquired, and

(b) identifying the shares so held on that date with shares subsequently disposed of, and distinguishing them from shares acquired subsequently,

so far as the shares are of the same class, shares acquired at an earlier time shall be deemed to have been disposed of before shares acquired at a later time.

(4) Shares shall not be treated for the purposes of this paragraph as being of the same class unless if dealt with on a stock exchange in the State or elsewhere they would be so treated, but shall be treated in accordance with this paragraph notwithstanding that they are identified in a different way by a disposal or by the transfer or delivery giving effect to it.

(5) This paragraph, without subparagraph (4), shall apply in relation to any assets, other than shares, which are of a nature to be dealt with without identifying the particular assets disposed of or acquired.

Reorganisation of share capital, conversion of securities, etc.

21.—(1) For the purposes of this Act, it shall be assumed that any shares or securities held by a person on the 6th day of April, 1974 (identified in accordance with paragraph 20), which, in accordance with paragraphs 2 to 5 of Schedule 2, are to be regarded as being or forming part of a new holding, were sold and immediately re-acquired by him on the 6th day of April, 1974, at their market value on that date.

(2) If the event which results in a new holding in accordance with the said paragraphs 2 to 5 occurs at a time after the 5th day of April, 1974, subparagraphs (3) to (5) of paragraph 18 shall have effect as if the new holding had at that time been sold by the owner, and immediately re-acquired by him, at its market value at that time, and accordingly, the amount of any gain on a disposal of the new holding or any part of it shall be computed—

(a) by apportioning in accordance with paragraph 18 the gain or loss over a period ending at the said time, and

(b) by bringing into account the entire gain or loss over the period from that time to the date of the disposal.

(3) This paragraph shall not apply in relation to a reorganisation of a company's share capital if the new holding differs only from the original shares in being a different number, whether greater or less, of shares of the same class as the original shares.

Assets transferred to controlled companies

22.—(1) This paragraph has effect where—

(a) at any time, including a time before the 6th day of April, 1974, any of the persons having control of a controlled company, or any person who (in the terms of section 33) is connected with a person having control of a controlled company, has transferred assets to the company, and

(b) paragraph 18 applies in relation to a disposal by one of the persons having control of the company of shares or securities in the company, or in relation to a disposal by a person having, up to the time of disposal, a holding of shares or securities in the company, being in either case a disposal after the transfer of the assets.

(2) So far as the gain accruing to the said person on the disposal of the shares is attributable to a profit on the assets so transferred, the period over which the gain is to be treated under paragraph 18 as growing at a uniform rate shall begin with the time when the assets were transferred to the company, and accordingly a part of a gain attributable to a profit on assets transferred on or after the 6th day of April, 1974, shall all be a chargeable gain.

(3) This paragraph shall not apply where a loss, and not a gain, accrues on the disposal.

ISB Act 1975-08-05

Schedule 2 CAPITAL GAINS TAX ACT, 1975 Open official source

SCHEDULE 2 Companies and Shareholders

Companies and Shareholders

Sections 11 and 51.

Capital distributions by companies

1.—(1) Where a person receives or becomes entitled to receive in respect of shares in a company any capital distribution from the company (other than a new holding as defined in paragraph 2), he shall be treated as if he had in consideration of that capital distribution disposed of an interest in the shares.

(2) In this paragraph “capital distribution” means any distribution from a company, including a distribution in the course of dissolving or winding up the company, in money or money's worth except a distribution which in the hands of the recipient constitutes income for the purposes of income tax.

Reorganisation or reduction of share capital

2.—(1) This paragraph shall apply in relation to any reorganisation or reduction of a company's share capital, and in this paragraph—

(a) references to a reorganisation of a company's share capital include—

(i) any case where persons are, whether for payment or not, allotted shares in or debentures of the company in respect of and in proportion to (or as nearly as may be in proportion to) their holdings of shares in the company or of any class of shares in the company; and

(ii) any case where there are more than one class of shares and the rights attached to shares of any class are altered; and

(b) “original shares” means shares held before and concerned in the reorganisation or reduction of capital, and “new holding” means, in relation to any original shares, the shares in and debentures of the company which as a result of the reorganisation or reduction of capital represent the original shares (including such, if any, of the original shares as remain).

(2) Subject to the following subparagraphs, a reorganisation or reduction of a company's share capital shall not be treated as involving any disposal of the original shares or any acquisition of the new holding or any part of it but the original shares (taken as a single asset) and the new holding (taken as a single asset) shall be treated as the same asset acquired as the original shares were acquired.

(3) Where, on a reorganisation or reduction of a company's share capital, a person gives or becomes liable to give any consideration for his new holding or any part of it, that consideration shall, in relation to any disposal of the new holding or any part of it, be treated as having been given for the original shares, and if the new holding or part of it is disposed of with a liability attaching to it in respect of that consideration, the consideration given for the disposal shall be adjusted accordingly

Provided that there shall not be treated as consideration given for the new holding or any part of it—

(a) any surrender, cancellation or other alteration of the original shares or of the rights attached thereto, or

(b) any consideration consisting of any application in paying up the new holding or any part of it, of assets of the company, or of any dividend or other distribution declared out of those assets but not made,

but, where in relation to an issue of share capital, section 56 of the Finance Act, 1974, applies, there shall be allowed as consideration given for the new holding which includes that share capital the sum in cash which he would have received if he had not exercised the option to receive additional share capital instead of a sum in cash.

(4) Where, on a reorganisation or reduction of a company's share capital, a person receives (or is deemed to receive), or becomes entitled to receive, any consideration, other than the new holding, for the disposal of an interest in the original shares, and in particular—

(a) where under paragraph 1 he is to be treated as if he had in consideration of a capital distribution disposed of an interest in the original shares, or

(b) where he receives (or is deemed to receive) consideration from other shareholders in respect of a surrender of rights derived from the original shares,

he shall be treated as if the new holding resulted from his having for that consideration disposed of an interest in the original shares (but without prejudice to the original shares and the new holding being treated in accordance with subparagraph (2) as the same asset).

(5) Where, for the purpose of computing the gain or loss accruing to a person from the acquisition and disposal of any part of the new holding, it is necessary to apportion the cost of acquisition of any of the original shares between the part which is disposed of and the part which is retained, the apportionment shall be made by reference to market value at the date of the disposal (with such adjustment of the market value of any part of the new holding as may be required to offset any liability attaching thereto but forming part of the cost to be apportioned); and any corresponding apportionment for the purposes of subparagraph (4) shall be made in like manner.

(6) Notwithstanding subparagraph (5)—

(a) where a new holding—

(i) consists of more than one class of shares in or debentures of the company and one or more of those classes is of shares or debentures which, at any time not later than the end of the period of three months beginning with the date on which the reorganisation or reduction of capital took effect, or of such longer period as the Revenue Commissioners may by notice in writing allow, had quoted market values on a recognised stock exchange in the State or elsewhere, or

(ii) consists of more than one class of rights of unit holders and one or more of those classes is of rights the prices of which were published regularly by the managers of the scheme at any time not later than the end of that period of three months (or longer if so allowed), and

(b) where for the purpose of computing the gain or loss accruing to a person from the acquisition and disposal of the whole or any part of any class of shares or securities or rights of unit holders forming part of a new holding of the kind referred to in clause (a) it is necessary to apportion costs of acquisition between the part that is disposed of and the part that is retained,

then the cost of acquisition of the new holding shall first be apportioned between the entire classes of shares or debentures or rights of which it consists by reference to market value on the first day (whether that day fell before the reorganisation or reduction of capital took effect or later) on which market values or prices were quoted or published for the shares, debentures or rights as mentioned in clause (a) or (b) (with such adjustment of the market value of any class as may be required to offset any liability attaching thereto but forming part of the cost to be apportioned) and for the purposes of this subparagraph the day on which a reorganisation of share capital involving the allotment of shares or debentures or unit holders' rights takes effect is the day following the day on which the right to renounce any allotment expires.

(7) Where a person receives or becomes entitled to receive in respect of any shares or debentures in a company a provisional allotment of shares in or debentures of the company and he disposes of his rights, paragraph 1 shall apply as if the amount of the consideration for the disposal were a capital distribution received by him from the company in respect of the first-mentioned shares, and as if that person had, instead of disposing of the rights, disposed of an interest in those shares.

(8) If under Part II of Schedule 1 it is to be assumed that, at a time after a person received or became entitled to receive in respect of any shares in or debentures of a company a provisional allotment of shares in or debentures of the company and before the disposal of his rights, the said person sold and immediately re-acquired the shares in respect of which the rights were created, subparagraph (7) shall have effect as if the same assumption applied as respects the rights.

(9) References in this paragraph to a reduction of share capital do not include the paying off of redeemable share capital, and where shares in a company are redeemable by the company otherwise than by the issue of shares or debentures (with or without other consideration) and otherwise than in a liquidation, the shareholder shall be treated as disposing of the shares at the time of the redemption.

Conversion of securities

3.—(1) Paragraph 2 shall apply with any necessary adaptations in relation to the conversion of securities as it applies in relation to the reorganisation or reduction of a company's share capital.

(2) In this paragraph—

“conversion of securities” includes—

(a) a conversion of securities of a company into shares in the company,

(b) a conversion at the option of the holder of the securities converted as an alternative to the redemption of those securities for cash, and

(c) any exchange of securities effected in pursuance of any enactment (including an enactment passed after this Act) which provides for the compulsory acquisition of any shares or securities and the issue of securities or other securities instead;

“security” includes any loan stock or similar security whether of any government or of any public or local authority or of any company and whether secured or unsecured but excluding securities falling within section 19.

Company amalgamations by exchange of shares

4.—(1) Subject to paragraph 5, where a company issues shares or debentures to a person in exchange for shares in or debentures of another company, paragraph 2 shall apply with any necessary adaptations as if the two companies were the same company and the exchange were a reorganisation of its share capital.

(2) This paragraph shall apply only where the company issuing the shares or debentures has or in consequence of the exchange will have control of the other company, or where the first-mentioned company issues the shares or debentures in exchange for shares as the result of a general offer made to members of the other company or any class of them (with or without exceptions for persons connected with the first-mentioned company) the offer being made in the first instance on a condition such that if it were satisfied the first-mentioned company would have control of the other company.

Company reconstruction and amalgamations

5.—(1) Where under any arrangement between a company and the persons holding shares in or debentures of the company or any class of such shares or debentures, being an arrangement entered into for the purposes of or in connection with a scheme of reconstruction or amalgamation, another company issues shares or debentures to those persons in respect of and in proportion to (or as nearly as may be in proportion to) their holdings of the first-mentioned shares or debentures, but the first-mentioned shares or debentures are either retained by those persons or cancelled, then those persons shall be treated as exchanging the first-mentioned shares or debentures for those held by them in consequence of the arrangement (any shares or debentures retained being for this purpose regarded as if they had been cancelled and replaced by a new issue) and accordingly paragraph 4 (other than subparagraph (2)) shall apply to such exchange of shares or debentures.

(2) Subparagraph (1) shall apply in relation to a company which has no share capital as if references to shares in or debentures of a company included references to any interests in the company possessed by members of the company and paragraphs 2 and 4 shall apply accordingly.

(3) In this paragraph “scheme of reconstruction or amalgamation” means a scheme for the reconstruction of any company or companies or the amalgamation of any two or more companies, and references to shares or debentures being retained include their being retained with altered rights or in an altered form whether as the result of reduction, consolidation, division or otherwise.

Transfer of business to a company

6.—(1) This paragraph shall apply for the purposes of this Act where a person who is not a company transfers to a company a business as a going concern, together with the whole of the assets of the business, or together with the whole of those assets other than cash, and the business is so transferred wholly or partly in exchange for shares (in this paragraph referred to as the new assets) issued by the company to the person transferring the business.

(2) The amount determined under subparagraph (4) shall be deducted from the aggregate (in this paragraph referred to as the gain on the old assets) of the net chargeable gains.

(3) For the purpose of computing any chargeable gain accruing on the disposal of any new asset—

(a) the amount determined under subparagraph (4) shall be apportioned between the new assets as a whole, and

(b) the sums allowable as a deduction under paragraph 3 (1) (a) of Schedule 1 shall be reduced by the amount apportioned to the new asset under clause (a),

and if the shares which comprise the new assets are not all of the same class, the apportionment between the shares under clause (a) shall be in accordance with their market values at the time they were acquired by the transferor.

(4) The amount referred to in subparagraphs (2) and (3) (a) shall be such portion of the gain on the old assets as bears the same proportion to the total of such gains as the cost of the new assets bears to the value of the whole of the consideration received by the transferor in exchange for the business and for the purposes of this subparagraph “the cost of the new assets” means any sums which would be allowable as a deduction under paragraph 3 (1) (a) of Schedule 1 if the new assets were disposed of as a whole in circumstances giving rise to a chargeable gain.

(5) In this paragraph “net chargeable gains” means chargeable gains less allowable losses.

(6) References in this paragraph to the business, in relation to shares or consideration received in exchange for the business, include references to such assets of the business as are referred to in subparagraph (1).

ISB Act 1975-08-05

Schedule 3 CAPITAL GAINS TAX ACT, 1975 Open official source

SCHEDULE 3 Leases

Leases

Section 11 and 51.

Leases of land as wasting assets: restriction of allowable expenditure

1.—(1) A lease of land shall not be a wasting asset until the time when its duration does not exceed fifty years.

(2) If at the beginning of the period of ownership of a lease of land it is subject to a sub-lease not at a rent representing the full value of the land together with any buildings thereon and the value of the lease at the end of the duration of the sub-lease, estimated as at the beginning of the period of ownership, exceeds the expenditure allowable under paragraph 3 (1) (a) of Schedule 1 in computing the gain accruing on a disposal of the lease, the lease shall not be a wasting asset until the end of the duration of the sub-lease.

(3) In the case of a wasting asset which is a lease of land, the rate at which expenditure is assumed to be written off shall, instead of being a uniform rate as provided by paragraph 9 of Schedule 1, be a rate fixed in accordance with the Table to this paragraph.

(4) Accordingly, for the purposes of the computation under Schedule 1 of the gain accruing on a disposal of a lease, and where—

(a) the percentage derived from the Table for the duration of the lease at the beginning of the period of ownership is P (1),

(b) the percentage so derived for the duration of the lease at the time when any item of expenditure attributable to the lease under paragraph 3 (1) (b) of Schedule 1 is first reflected in the nature of the lease is P(2), and

(c) the percentage so derived for the duration of the lease at the time of the disposal is P(3),

then—

(i) there shall be excluded from the expenditure attributable to the lease under the said paragraph 3 (1) (a) a fraction equal to , and

(ii) there shall be excluded from any item of expenditure attributable to the lease under the said paragraph 3 (1) (b) a fraction equal to .

(5) This paragraph applies notwithstanding that the period of ownership of the lease is a period exceeding fifty years and, accordingly, no expenditure shall be written off under this paragraph in respect of any period earlier than the time when the lease becomes a wasting asset.

(6) Paragraph 10 of Schedule 1 shall apply in relation to this paragraph as it applies in relation to paragraph 9 of that Schedule.

TABLE

Years

Percentage

Years

Percentage

50 (or more)

1000

25

811

49

997

24

796

48

993

23

781

47

989

22

764

46

985

21

746

45

981

20

728

44

976

19

708

43

971

18

687

42

966

17

665

41

960

16

641

40

955

15

616

39

948

14

590

38

942

13

562

37

935

12

532

36

928

11

500

35

920

10

467

34

912

9

432

33

903

8

394

32

894

7

354

31

884

6

312

30

873

5

267

29

862

4

220

28

851

3

170

27

838

2

116

26

825

1

60

0

00

If the duration of the lease is not an exact number of years the percentage to be derived from the Table above shall be the percentage for the whole number of years plus one-twelfth of the difference between that and the percentage for the next higher number of years for each odd month counting an odd 14 days or more as one month.

Premiums for leases

2.—(1) Subject to this Schedule where the payment of a premium is required under a lease of land, or otherwise under the terms subject to which a lease of land is granted, there is a part disposal of the freehold or other asset out of which the lease is granted.

(2) In applying paragraph 6 of Schedule 1 to such a part disposal, the property which remains undisposed of includes a right to any rent or other payments, other than a premium, payable under the lease, and that right shall be valued as at the time of the part disposal.

Payment during currency of lease treated as premium

3.—(1) Where, under the terms subject to which a lease of land is granted, a sum becomes payable by the lessee in lieu of the whole or part of the rent for any period, or as consideration for the surrender of the lease, the lease shall be deemed for the purposes of this Schedule to have required the payment of a premium to the lessor (in addition to any other premium) of the amount of that sum for the period in relation to which the sum is payable.

(2) Where, as consideration for the variation or waiver of any of the terms of a lease of land, a sum becomes payable by the lessee otherwise than by way of rent, the lease shall be deemed for the purposes of this Schedule to have required the payment of a premium to the lessor (in addition to any other premium) of the amount of that sum for the period from the time when the variation or waiver takes effect to the time when it ceases to have effect.

(3) If under subparagraph (1) or (2) a premium is deemed to have been received by the lessor, otherwise than as consideration for the surrender of the lease, then—

(a) subject to clause (b), both the lessor and the lessee shall be treated as if that premium were, or were part of, the consideration for the grant of the lease due at the time when the lease was granted, but

(b) if the lessor is a lessee under a lease the duration of which does not exceed fifty years, this Schedule shall apply as if—

(i) the said premium had been given by way of consideration for the grant of the part of the sub-lease covered by the period in respect of which the premium is deemed to have been paid, and

(ii) that consideration were expenditure incurred by the sub-lessee and attributable to the said part of the sub-lease under paragraph 3 (1) (b) of Schedule 1.

(4) Where subparagraph (3) (a) applies, the gain accruing to the lessor on the disposal by way of grant of the lease shall be recomputed and any necessary adjustments of tax, whether by way of assessment for the year in which the premium is deemed to have been received or by way of discharge or repayment of tax, made accordingly.

(5) Where under subparagraph (1) a premium is deemed to have been received as consideration for the surrender of a lease, that premium shall be regarded as consideration for a separate transaction consisting of the disposal by the lessor of his interest in the lease.

(6) Subparagraph (2) shall apply in relation to a transaction not at arm's length, and in particular in relation to a transaction entered into gratuitously, as if such sum had become payable by the tenant otherwise than by way of rent as might have been required of him if the transaction had been at arm's length.

Sub-leases out of short leases

4.—(1) This paragraph applies in relation to a lease which is a wasting asset.

(2) In the computation under Schedule 1 of the gain accruing on the part disposal of a lease by way of the grant of a sub-lease for a premium (in this paragraph referred to as the actual premium), the expenditure attributable to the lease under clauses (a) and (b) of paragraph 3 (1) of Schedule 1 shall be apportioned in accordance with this paragraph, and paragraph 6 of Schedule 1 shall not apply.

(3) Out of each item of the expenditure attributable to the lease under the said clauses (a) and (b) there shall be apportioned to the part disposal—

(a) if the amount of the actual premium is not less than the amount which would be obtainable by way of premium for the said sub-lease if the rent payable under the sub-lease were the same as the rent payable under the lease (in this paragraph referred to as the full premium), the amount (in this paragraph referred to as the allowable amount) which, under paragraph 1 (3), is to be written off over the period which is the duration of the sub-lease, and

(b) if the amount of the actual premium is less than the full premium, such proportion of the allowable amount as is equal to the proportion which the actual premium bears to the full premium.

(4) If the sub-lease is a sub-lease of part only of the land comprised in the lease, this paragraph shall apply only in relation to a proportion of the expenditure attributable to the lease under the said clauses (a) and (b) which is the same as the proportion which the value of the land comprised in the sub-lease at the time when the sub-lease is granted bears to the value of that and the other land comprised in the lease at the said time; and the remainder of that expenditure shall be apportioned to the other land.

Exclusion of premiums taxed under Case V of Schedule D

5.—(1) Where by reference to any premium income tax has become chargeable under section 83 of the Income Tax Act, 1967 (treatment of premiums, etc., as rent), on any amount, that amount shall be excluded from the consideration brought into account in the computation under Schedule 1 of a gain accruing on a disposal of the interest in respect of which income tax becomes so chargeable, except where, in an apportionment under paragraph 6 of the said Schedule, the value of the consideration is taken into account in the aggregate of the said value and the market value of the property which remains undisposed of.

(2) Where by reference to any premium in respect of a sub-lease granted out of a lease the duration of which (that is, of the lease) does not, at the time of granting the lease, exceed fifty years, income tax has become chargeable under the said section 83 on any amount, that amount shall be deducted from any gain accruing on the disposal for which the premium is consideration as computed in accordance with the provisions of this Act apart from this subparagraph, but not so as to convert the gain into a loss, or to increase any loss.

(3) Where income tax has become chargeable under section 85 of the Income Tax Act, 1967 (sale of land with right of reconveyance), on any amount, that amount shall be excluded from the consideration brought into account in the computation under Schedule 1 of a gain accruing on the disposal of the estate or interest in respect of which income tax becomes so chargeable, except where, in an apportionment made under paragraph 6 of the said Schedule, the value of the consideration is taken into account in the aggregate of the said value and the market value of the property which remains undisposed of

Provided that if the part or interest disposed of is the remainder of a lease or a sub-lease out of a lease the duration of which does not exceed fifty years, the foregoing provisions of this subparagraph shall not apply but the said amount shall be deducted from any gain accruing on the disposal as computed in accordance with the provisions of this Act apart from this subparagraph, but not so as to convert the gain into a loss, or to increase any loss.

(4) References in subparagraphs (1) and (2) to a premium include references to a premium deemed to have been received under subsection (3) or (4) of section 83 of the Income Tax Act, 1967 (which correspond to paragraph 3 (1) and (2)).

(5) Paragraph 2 of Schedule 1 shall not be taken as authorising the exclusion of any amount from the consideration for a disposal of assets taken into account in the computation under that Schedule by reference to any amount chargeable to tax under Chapter VI of Part IV of the Income Tax Act, 1967.

Disallowance of premium treated as rent under superior lease

6.—(1) If under section 92 (1) of the Income Tax Act, 1967 (allowance, on the grant of a sub-lease, by reference to premiums etc. paid), a person is to be treated as paying additional rent in consequence of having granted a sub-lease, the amount of any loss accruing to him on the disposal by way of the grant of the sub-lease shall be reduced by the total amount of rent which he is thereby treated as paying over the term of the sub-lease (and without regard to whether relief is thereby effectively given over the term of the sub-lease), but not so as to convert the loss into a gain, or to increase any gain.

(2) Nothing in paragraph 2 of Schedule 1 shall be taken as applying in relation to any amount on which tax is paid under section 84 of the Income Tax Act, 1967 (charge on assignment of lease granted at undervalue).

(3) If any adjustment is made under section 85 (2) (b) of the Income Tax Act, 1967 (adjustment of charge on sale of land with right to reconveyance), on a claim under that paragraph, any necessary adjustment shall be made to give effect to the consequences of the claim on the operation of this paragraph or paragraph 5.

Expenditure by lessee under terms of lease

7.—If under section 83 (2) of the Income Tax Act, 1967 (lessee's expenditure treated as premium), income tax is chargeable on any amount, as being a premium the payment of which is deemed to be required by the lease, the person so chargeable shall be treated for the purposes of the computation of any gain accruing to him on the disposal by way of grant of the lease, and on any subsequent disposal of the asset out of which the lease was granted, as having incurred at the time the lease was granted expenditure of that amount (in addition to any other expenditure) attributable to the asset under paragraph 3 (1) (b) of Schedule 1.

Duration of leases

8.—(1) In ascertaining for the purposes of this Act the duration of a lease of land, the following provisions shall have effect.

(2) Where the terms of the lease include provision for the determination of the lease by notice given by the lessor, the lease shall not be treated as granted for a term longer than one ending at the earliest date on which it could be determined by notice given by the lessor.

(3) Where any of the terms of the lease (whether relating to forfeiture or to any other matter) or any other circumstances render it unlikely that the lease will continue beyond a date falling before the expiration of the term of the lease, the lease shall not be treated as having been granted for a term longer than one ending on that date and this subparagraph applies in particular where the lease provides for the rent to be increased after a given date, or for the lessee's obligations to become in any other respect more onerous after a given date, but includes provision for the determination of the lease on that date by notice given by the lessee, and those provisions render it unlikely that the lease will continue beyond that date.

(4) Where the terms of the lease include provision for the extension of the lease beyond a given date by notice given by the lessee, this paragraph shall apply as if the term of the lease extended for as long as it could be extended by the lessee, but subject to any right of the lessor by notice to determine the lease.

(5) The duration of a lease shall be decided, in relation to the grant or any disposal of the lease, by reference to the facts which were known or ascertainable at the time when the lease was acquired or created.

Leases of property other than land

9.—(1) Paragraphs 2, 3, 4 and 8 shall apply in relation to leases of property other than land as they apply to leases of land subject to any necessary modifications.

(2) In the case of a lease of a wasting asset which is movable property, the lease shall be assumed to terminate not later than the end of the life of the wasting asset.

Interpretation

10.—In this Schedule “premium” includes any like sum, whether payable to the intermediate or a superior lessor and for the purposes of this Schedule any sum (other than rent) paid on or in connection with the granting of a tenancy shall be presumed to have been paid by way of premium except in so far as other sufficient consideration for the payment is shown to have been given.

ISB Act 1975-08-05

Schedule 4 CAPITAL GAINS TAX ACT, 1975 Open official source

SCHEDULE 4 Administration

Administration

Section 51.

Administration, assessment and collection: general

1.—(1) Capital gains tax shall be under the care and management of the Revenue Commissioners.

(2) Assessments under this Act shall be made by the inspectors or such other officers as the Revenue Commissioners shall appoint in that behalf.

(3) The Collector-General for the time being appointed under section 162 of the Income Tax Act, 1967, shall collect and levy capital gains tax from time to time charged in all assessments made under the provisions of this Act of which particulars have been transmitted to him under section 187 of the Income Tax Act, 1967, as applied by paragraph 2, and the further provisions of the said section 162 with regard to the nomination by the Revenue Commissioners of persons to act as the Collector-General or to exercise the powers of the Collector-General shall apply to capital gains tax as they apply to income tax.

Application of income tax administrative provisions

2.—(1) The provisions of the Income Tax Acts relating to the care, management, assessment, collection and recovery of income tax shall, subject to any necessary modifications, apply in relation to capital gains tax as they apply in relation to income tax chargeable under Schedule D.

(2) In particular and without prejudice to the generality of subparagraph (1), the provisions of the said Acts specified in the Table to this paragraph shall, subject to any necessary modifications, apply to capital gains tax.

TABLE

INCOME TAX PROVISIONS APPLIED TO CAPITAL GAINS TAX

Income Tax Act, 1967

Section 76 (5), (6)

(appeal on question of domicile or ordinary residence).

Section 155 (2), (3), (4) and (5)

(powers and functions of the Revenue Commissioners).

Section 165

(prescription of forms).

Sections 181, 182, 184 and 186

(making of assessments and additional assessments, notice of and time limit for assessment and granting of allowances and reliefs).

Section 187

(transmission to Collector of particulars of sums to be collected).

Section 188

(loss or destruction of assessments and other documents).

Section 190

(provision against double assessment).

Section 191

(relief in respect of error or mistake in return).

Section 200

(non-residents: assessment).

Section 201

(assessment of agent and non-resident).

Part IX, Chapter III

(representative assessments) except section 213.

Section 417

(grounds of appeal to be stated).

Section 419

(recovery of tax not in dispute).

Section 432

(making of claims etc. and appeals and rehearings).

Part XXXIII

(collection) except sections 476, 477, 479, 484 and 495.

Section 498

(limit of time for repayment claims).

Section 537

(effect of want of form in assessments and other documents).

Section 538

(exemption of appraisements and valuations from stamp duty).

Section 542

(delivery, service and evidence of notices and forms).

Sections 550 and 551

(interest on overdue tax).

Finance (Miscellaneous Provisions) Act, 1968

Section 27

(taking by Collector-General of proceedings in bankruptcy).

Finance Act, 1971

Section 20

(charge of interest in cases of fraud or neglect).

Finance Act, 1973

Section 33 (4), (7) and Third Schedule

(activities on the Continental Shelf).

Returns and information

3.—(1) The provisions of the Income Tax Acts relating to the making or delivery of any return, statement, declaration, list or other document, the furnishing of any particulars, the production of any document, the making of anything available for inspection, the delivery of any account or the making of any representation, shall, subject to any necessary modifications, apply in relation to capital gains tax as they apply in relation to income tax.

(2) In particular and without prejudice to the generality of subparagraph (1), the provisions of the said Acts specified in the Table to this paragraph shall, subject to any necessary modifications, apply in relation to capital gains tax, and sections 500, 501 and 503 of the Income Tax Act, 1967, as applied by this paragraph, shall, for the purposes of this Act, be construed as if in Schedule 15 to the Income Tax Act, 1967, there were included—

(a) in column 1, references to paragraphs 4 to 7 inclusive,

(b) in column 2, a reference to paragraph 8, and

(c) in column 3, a reference to paragraph 11.

(3) A notice under any of the said provisions of the Income Tax Acts, as applied by this paragraph, may require particulars of any assets acquired by the person on whom the notice was served (or if the notice relates to income or chargeable gains of some other person for whom the person who receives the notice is required to make a return under section 170 of the Income Tax Act, 1967, as so applied by this paragraph, of any assets acquired by that other person) in the period specified in the notice, being a period beginning not earlier than the 6th day of April, 1974, but excluding—

(a) any assets exempted by section 19 (Government and other securities) or section 24 (miscellaneous exemptions) or

(b) any assets acquired as trading stock.

(4) The particulars required under this paragraph may include particulars of the person from whom the asset was acquired and of the consideration for the acquisition.

(5) A return of income of a partnership under section 70 of the Income Tax Act, 1967, shall include—

(a) with respect to any disposal of partnership assets during a period to which any part of the return relates, the like particulars as if the partnership were liable to tax on any chargeable gain accruing on the disposal, and

(b) with respect to any acquisition of partnership assets, the particulars required by subparagraph (3).

(6) Where any person has been required by notice or precept given under the provisions of the Income Tax Acts, as applied by this paragraph, or under the provisions of the following paragraphs, to do any act of a kind mentioned in any of the said provisions, and he fails to comply with the notice or precept, or where any person fraudulently or negligently makes, delivers, furnishes or produces any incorrect return, statement, declaration, list, account, particulars or other document (or knowingly makes any false statement or false representation) under any of the said provisions, Part XXXV (penalties and assessments) of the Income Tax Act, 1967, shall apply to that person for the purposes of capital gains tax as they apply in the case of a like failure or act for the purposes of income tax.

TABLE

FURTHER INCOME TAX PROVISIONS APPLIED TO CAPITAL GAINS TAX

Income Tax Act, 1967

Section 94

(returns in relation to leases).

Section 70

(partnership returns).

Section 169

(returns by persons chargeable).

Section 170

(persons acting for incapacitated persons and non-residents).

Section 172

(power to require return).

Section 174

(power to require production of accounts and books).

Part XXXV

(penalties and assessments).

Finance Miscellaneous Provisions) Act, 1968

Section 5

(giving notice by person of liability to tax).

Finance Act, 1973

Third Schedule, paragraph 1 (holder of mineral licence).

Returns by issuing houses, stockbrokers, auctioneers, etc.

4.—(1) For the purpose of obtaining particulars of chargeable gains, an inspector may by notice in writing require a return under any of the provisions of this paragraph.

(2) (a) An issuing house or other person carrying on a business of effecting public issues of shares or securities in any company, or placings of shares or securities in any company, either on behalf of the company, or on behalf of holders of blocks of shares or securities which have not previously been the subject of a public issue or placing, may be required to make a return of all such public issues or placings effected by that person in the course of the business in the period specified in the notice requiring the return, giving particulars of the persons to or with whom the shares or securities are issued, allotted or placed, and the number or amount of the shares or securities so obtained by them respectively.

(b) In this subparagraph “shares” includes units in a unit trust.

(3) A person not carrying on such a business may be required to make a return as regards any such issue or placing effected by that person and specified in the notice, giving particulars of the persons to or with whom the shares or securities are issued, allotted, or placed and the number or amount of the shares or securities so obtained by them respectively.

(4) A member of a stock exchange in the State may be required to make a return giving particulars of any transactions effected by him in the course of his business in the period specified in the notice requiring the return and giving particulars of—

(a) the parties to the transactions,

(b) the number or amount of the shares or securities dealt with in the respective transactions, and

(c) the amount or value of the consideration.

(5) A person (other than a member of a stock exchange in the State) who acts as an agent in the State in transactions in shares or securities may be required to make a return giving particulars of any such transactions effected by him in the period specified in the notice and giving particulars of—

(a) the parties to the transactions,

(b) the number or amount of the shares or securities dealt with in the respective transactions, and

(c) the amount or value of the consideration.

(6) An auctioneer, and any person carrying on a trade of dealing in any description of tangible movable property, or of acting as an agent or intermediary in dealings in any description of tangible movable property, may be required to make a return giving particulars of any transactions effected by or through him in which any asset which is tangible movable property is disposed of for a consideration the amount or value of which, in the hands of the recipient, exceeds two thousand pounds.

(7) No person shall be required under this paragraph to include in a return particulars of any transaction effected before the 6th day of April, 1974, or more than three years before the service of the notice requiring him to make the return.

Returns by nominee shareholders

5.—(1) If, for the purpose of obtaining particulars of chargeable gains, any person in whose name any shares of a company are registered is so required by notice in writing by the Revenue Commissioners or by an inspector, he shall state whether or not he is the beneficial owner of those shares and, if not the beneficial owner of those shares or any of them, shall furnish the name and address of the person or persons on whose behalf the shares are registered in his name.

(2) In this paragraph references to shares include references to securities and loan capital.

Returns by party to a settlement

6.—The Revenue Commissioners may by notice in writing require any person, being a party to a settlement, to furnish them within such time as they may direct (not being less than twenty-eight days) with such particulars relating to the settlement as they think necessary for the purposes of this Act.

Returns relating to non-resident companies and trusts

7.—A person holding shares or securities in a company which is not resident or ordinarily resident in the State, or who is beneficially interested or who acts as agent for or on behalf of a person who is beneficially interested in settled property under a settlement the trustees of which are not resident or ordinarily resident in the State, may be required by a notice by the Revenue Commissioners to give such particulars as the Revenue Commissioners may consider are required to determine whether the company or trust falls within section 36 (non-resident companies) or section 37 (non-resident trusts), and whether any chargeable gains have accrued to that company, or to the trustees of that settlement, in respect of which the person to whom the notice is given is liable to capital gains tax under the said section 36 or 37.

Appeals

8.—(1) A person aggrieved by any assessment under this Act made upon him by the inspector or such other officer as is mentioned in paragraph 1 (2) shall be entitled to appeal to the Appeal Commissioners on giving, within twenty-one days after the date of the notice of assessment, notice in writing to the inspector or other officer, and in default of notice of appeal by a person to whom notice of assessment has been given or in case of the neglect or refusal of a person, who has given notice of appeal, to attend before the Appeal Commissioners at the time and place appointed for the purpose of hearing appeals, the assessment made, on him shall be final and conclusive.

(2) The provisions of the Income Tax Acts relating to—

(a) the appointment of times and places for the hearing of appeals;

(b) the giving of notice to each person who has given notice of appeal of the time and place appointed for the hearing of his appeal;

(c) the determination of an appeal by agreement between the appellant or his agent and an inspector of taxes or such other officer as is mentioned in paragraph 1 (2);

(d) the determination of an appeal by the appellant giving notice of his intention not to proceed with the appeal;

(e) the hearing and determination of an appeal by the Appeal Commissioners including the hearing and determination of an appeal by one Appeal Commissioner;

(f) the determination of an appeal through the neglect or refusal of a person who has given notice of appeal to attend before the Appeal Commissioners at the time and place appointed;

(g) the extension of the time for giving notice of appeal, and the readmission of appeals by the Appeal Commissioners;

(h) the rehearing of an appeal by a judge of the Circuit Court and the statement of a case for the opinion of the High Court on a point of law;

(i) the payment of tax in accordance with the determination of the Appeal Commissioners notwithstanding that an appeal is required to be reheard by a judge of the Circuit Court or that a case for the opinion of the High Court on a point of law has been required to be stated or is pending;

(j) the payment of tax which is agreed not to be in dispute in relation to an appeal; and

(k) the procedures for appeal,

shall, with any necessary modifications, apply to an appeal under any of the provisions of this Act which provide for an appeal to the Appeal Commissioners as if the appeal were an appeal against an assessment to income tax.

Regulations with respect to appeals

9.—(1) The Revenue Commissioners may make regulations—

(a) as respects the conduct of appeals against assessments and decisions on claims under this Act,

(b) entitling persons, in addition to those who would be so entitled apart from the regulations, to appear on such appeals,

(c) regulating the time within which such appeals or claims may be brought or made,

(d) where the market value of an asset on a particular date or an apportionment or any other matter may affect the liability to capital gains tax of two or more persons, enabling any such person to have the matter determined by the tribunal having jurisdiction to determine that matter if arising on an appeal against an assessment, and prescribing a procedure by which the matter is not determined differently on different occasions,

(e) authorising an inspector or other officer of the Revenue Commissioners, notwithstanding the obligation as to secrecy imposed by the Income Tax Acts or any other Act, to disclose to a person entitled to appear on such an appeal the market value of an asset as determined by an assessment or decision on a claim, or to disclose to a person whose liability to tax may be affected by the determination of the market value of an asset on a particular date, or an apportionment or any other matter, any decision on the matter made by an inspector or other officer of the Revenue Commissioners.

(2) Regulations under this paragraph may contain such supplemental and incidental provisions as appear to the Revenue Commissioners to be necessary.

(3) Every regulation made under this paragraph shall be laid before Dáil Éireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by Dáil Éireann within the next twenty-one days on which Dáil Éireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Married persons

10.—(1) A return under section 172 of the Income Tax Act, 1967 (as applied by this Schedule), as respects chargeable gains accruing to a married woman in a year of assessment, or part of a year of assessment, during which she is a married woman living with her husband may be required either from her or, if her husband is liable under section 13 (1) from him.

(2) Section 194 of the Income Tax Act, 1967 (collection from wife of tax assessed on husband attributable to her income), and section 195 of the said Act (right of husband to disclaim liability for tax on deceased wife's income) shall apply with any necessary modifications in relation to capital gains tax as they apply in relation to income tax.

Disposal of certain assets by non-resident

11.—(1) This paragraph shall apply to assets that are—

(a) land in the State;

(b) minerals in the State or any rights, interests or other assets in relation to mining or minerals or the searching for minerals;

(c) exploration or exploitation rights in a designated area;

(d) shares in a company deriving their value or the greater part of their value directly or indirectly from assets specified in clause (a), (b) or (c) other than shares quoted on a stock exchange; and

(e) goodwill of a trade carried on in the State.

(2) Upon payment of the consideration for acquiring an asset to which this paragraph applies, the person by or through whom any such payment is made shall deduct thereout a sum representing an amount of capital gains tax on one-half of the said payment at the rate of such tax in force at the time the payment is made and the person to whom the payment is made shall allow such deduction upon receipt of the residue of the payment and the person making the deduction shall, on proof of payment to the Revenue Commissioners of the amount so deducted, be acquitted and discharged of so much money as is represented by the deduction as if that sum had been actually paid to the person making the disposal

Provided that where the person disposing of the asset produces to the person acquiring the asset a certificate issued under subparagraph (6) in relation to the disposal, no such deduction shall be made.

(3) Where any such payment as aforesaid is made by or on be half of any person, that person shall forthwith deliver to the Revenue Commissioners an account of the payment, and of the amount deducted therefrom, and the inspector shall, notwithstanding any other provision of this Act, assess and charge that person to capital gains tax for the year of assessment in which the payment was made on an amount equal to one-half of the payment at the rate specified in section 3 (3).

(4) The inspector may, where, in relation to any such payment as aforesaid, any person has made default in delivering an account required by this paragraph, or where he is not satisfied with the account, estimate the amount of the payment to the best of his judgment and, notwithstanding section 5 (1), assess and charge that person to capital gains tax for the year of assessment in which the payment was made on an amount equal to one-half of the amount so estimated at the rate specified in section 3 (3).

(5) Where the amount of capital gains tax assessed and charged under subparagraph (3) or (4) is paid, appropriate relief shall, on a claim being made in that behalf, be given to the person chargeable in respect of the gain on the disposal, whether by discharge or repayment or otherwise.

(6) A person chargeable to capital gains tax on the disposal of any asset to which this paragraph applies may apply to the inspector for a certificate that tax should not be deducted from the consideration for the disposal of the asset and, if the inspector is satisfied that the person making the application is the person making the disposal and that—

(a) he is ordinarily resident in the State, or

(b) no amount of capital gains tax is payable in respect of the disposal, or

(c) the capital gains tax chargeable for the year of assessment for which he is chargeable in respect of the disposal of the asset and the tax chargeable on any gain accruing in any earlier year of assessment (not being a year ending earlier than the 6th day of April, 1974) on a previous disposal of the asset has been paid,

the inspector shall issue the certificate.

(7) This paragraph shall not apply where the consideration on a disposal does not exceed the sum of fifty thousand pounds

Provided that if an asset owned at one time by one person, being an asset to which this paragraph would, but for this subparagraph apply, is disposed of by that person in parts—

(a) to the same person, or

(b) to persons who are acting in concert or who are in the terms of section 33 connected persons,

whether on the same or different occasions, the several disposals shall for the purposes of this subparagraph but not for any other purpose be treated as a single disposal.

(8) Notwithstanding section 5 (2), where an amount of capital gains tax is assessed and charged pursuant to this paragraph, such amount shall be due and payable on the day next after the day on which the assessment is made.

(9) In this paragraph “exploration and exploitation rights”, “designated area” and “shares” have the same meanings as in section 4 (8).

(10) This paragraph shall apply only in relation to disposals and acquisitions occurring after the passing of this Act.

Liability of trustees, etc.

12.—(1) Capital gains tax chargeable in respect of chargeable gains accruing to the trustees of a settlement or capital gains tax due from the personal representatives of a deceased person may be assessed and charged on and in the name of any one or more of those trustees or personal representatives.

(2) Subject to section 8 (3), chargeable gains accruing to the trustees of a settlement or to the personal representatives of a deceased person, and capital gains tax chargeable on or in the name of such trustees or personal representatives, shall not be regarded for the purposes of this Act as accruing to, or chargeable on, any other person, nor shall any trustee or personal representative be regarded for the purposes of this Act as an individual.

Conclusiveness of income tax decisions

13.—Any assessment to income tax or decision on a claim under the Income Tax Acts, and any decision on an appeal under the Income Tax Acts against such an assessment or decision, shall be conclusive so far as under section 6 or Schedule 1 or any other provision of this Act liability to tax depends on the provisions of the Income Tax Acts.

Valuation of assets: power to inspect

14.—(1) An inspector or such other officer as is mentioned in paragraph 1 (2) shall be authorised to inspect any property for the purpose of ascertaining its market value and the person having the custody or possession of that property shall permit the inspector or other officer so authorised, on producing if so required evidence of his authority, to inspect it at such reasonable times as the Revenue Commissioners may consider necessary.

(2) Section 515 of the Income Tax Act, 1967, shall apply to an inspector or other officer referred to in subparagraph (1) and to a person acting in the aid of such an inspector or officer as it applies in relation to the persons referred to in paragraphs (a) and (b) of subsection (1) of that section.

Capital gains tax: preferential payment

15.—The priority attaching to assessed taxes under section 4 of the Preferential Payment in Bankruptcy (Ireland) Act, 1889 and sections 98 and 285 of the Companies Act, 1963, shall apply to capital gains tax.

Power to combine returns, etc. with income tax documents

16.—Any return or assessment or other document relating to chargeable gains or capital gains tax may be combined with one relating to income or income tax.

Recovery of tax from shareholder

17.—(1) This paragraph applies where a person who is connected with a company resident in the State receives or becomes entitled to receive in respect of shares in the company any capital distribution from the company, other than a capital distribution representing a reduction of capital, and—

(a) the capital so distributed derives from the disposal of assets in respect of which a chargeable gain accrues to the company, or

(b) the distribution constitutes such a disposal of assets.

(2) If the capital gains tax assessed on the company for the year of assessment in which the chargeable gain accrues included any amount in respect of that chargeable gain, and any of the tax assessed on the company for that year is not paid within six months from the date when it becomes payable by the company, the said person may by an assessment made within two years from that date be assessed and charged (in the name of the company) to an amount of that capital gains tax—

(a) not exceeding the amount or value of the capital distribution which that person has received or became entitled to receive, and

(b) not exceeding a proportion equal to that person's share of the capital distribution made by the company of capital gains tax on the amount of that gain at the rate in force when the gain accrued.

(3) A person paying any amount of tax under this paragraph shall be entitled to recover a sum equal to that amount from the company.

(4) The provisions of this paragraph are without prejudice to any liability of the person receiving or becoming entitled to receive the capital distribution in respect of a chargeable gain accruing to him by reference to the capital distribution as constituting a disposal of an interest in shares in the company.

(5) In this paragraph “capital distribution” has the same meaning as in paragraph 1 of Schedule 2 and a person shall be regarded as connected with a company if that person would be so regarded for the purposes of section 33.

Gifts: recovery of tax from donee

18.—(1) If in any year of assessment a chargeable gain accrues to any person on the disposal of an asset by way of gift and any amount of capital gains tax assessed on that person for that year of assessment is not paid within twelve months from the date when the tax becomes payable, the donee may, by an assessment made not later than two years from the date when the tax became payable, be assessed and charged (in the name of the donor) to capital gains tax on an amount not exceeding the amount of the chargeable gain so accruing, and not exceeding such an amount of chargeable gains as would, if charged at the rate provided in section 3 (3), result in liability to an amount of capital gains tax equal to the said amount of capital gains tax which was not paid by the donor.

(2) Where the gift consists of a new asset, the donee may, in addition to being assessed and charged under subparagraph (1) in respect of the new asset, be assessed and charged as if the chargeable gain on the disposal of the old asset were a chargeable gain on the disposal of the new asset the capital gains tax in respect of which was not paid within twelve months from the date when the tax had become payable.

(3) (a) Where a person on whom capital gains tax is assessed and charged in respect of the disposal of an asset transfers directly or indirectly by way of gift to a donee the whole of the proceeds of the disposal, or, where the asset is a new asset acquired by the use of the proceeds of the disposal of an old asset, the whole of the proceeds of the disposal of the new asset, subparagraphs (1) and (2) shall apply to the amount of capital gains tax so assessed and charged.

(b) Where a person on whom capital gains tax is assessed and charged in respect of the disposal of an asset transfers directly or indirectly by way of gift to a donee part of the proceeds of the disposal, or, where the asset is a new asset acquired by the use of the proceeds of the disposal of an old asset, part of the proceeds of the disposal of the new asset, subparagraphs (1) and (2) shall apply to such part of the amount of capital gains tax so assessed and charged as bears to the whole of such tax the same proportion that the part aforesaid of the proceeds aforesaid bear to the whole of those proceeds.

(4) The donee of a gift paying any amount of tax in pursuance of this paragraph shall, subject to any terms or conditions of the gift, be entitled to recover a sum of that amount from the donor of the gift as a simple contract debt in any court of competent jurisdiction.

(5) References in this paragraph to a donor include, in the case of an individual who has died, references to his personal representatives.

(6) In this paragraph references to a gift include references to any transaction otherwise than by way of a bargain made at arm's length so far as money or money's worth passes under the transaction without full consideration in money or money's worth, and “donor” and “donee” shall be construed accordingly; and this paragraph shall apply in relation to a gift made to two or more donees with any necessary modifications and subject to the proviso that each such donee shall be liable to be assessed and charged in respect only of such part of the amount of capital gains tax payable by the donees by virtue of this paragraph as bears to the whole of such tax the same proportion as the part of the gift made to that donee bears to the whole of the gift.

(7) In this paragraph “old asset” and “new asset” have the same meanings as in section 28.

Miscellaneous

19.—For the purposes of this Schedule, section 94 of the Income Tax Act, 1967, as applied by paragraph 3 (returns and information) shall apply to property or leases of property other than premises as it applies to premises or leases of premises.

CAPITAL GAINS TAX ACT, 1975

Statutory Text (4 Articles)

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