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S.I. No. 7/2011 - Mandatory Disclosure of Certain Transactions Regulations 2011.
Table of Provisions (31)
Statutory Text (31 Articles)
1. A Profit Sharing Scheme approved by the Revenue Commissioners under Part 2 of Schedule 11 to the Principal Act.
2. An Employee Share Ownership Trust approved by the Revenue Commissioners under paragraph 2 of Schedule 12 to the Principal Act.
3. A Savings Related Share Option Scheme approved by the Revenue Commissioners under paragraph 2 of Schedule 12A to the Principal Act.
4. A Contractual Savings Scheme certified by the Revenue Commissioners under Schedule 12B to the Principal Act.
5. A Share Option Scheme approved by the Revenue Commissioners under paragraph 2 of Schedule 12C to the Principal Act.
6. An approved salary sacrifice arrangement referred to in section 118B of the Principal Act.
7. A Retirement Benefits Scheme within the meaning of section 771 of the Principal Act, for the time being approved by the Revenue Commissioners for the purposes of Chapter 1 of Part 30 of that Act.
8. An Annuity Contract or a Trust Scheme, or part of a Trust Scheme, for the time being approved by the Revenue Commissioners under section 784 of the Principal Act.
9. A PRSA contract, within the meaning of section 787A of the Principal Act, in respect of a PRSA product, within the meaning of that section.
10. A Qualifying Overseas Pension Plan, within the meaning of Chapter 2B of Part 30 of the Principal Act.
11. A transaction qualifying for relief for investment in films under section 481 of the Principal Act.
12. A transaction qualifying for relief for investment in renewable energy generation under section 486B of the Principal Act.
13. A transaction qualifying for exemption for profits or gains arising from the occupation of certain woodlands under section 232 of the Principal Act.
14. A transaction qualifying for exemption from CGT of certain proceeds of sale of woodlands under section 564 of the Principal Act.
15. A transaction qualifying for relief for investment in corporate trades under Part 16 of the Principal Act.
16. A transaction qualifying for the tax treatment of certain venture fund managers under section 541C of the Principal Act.
17. A transaction qualifying for repayment of tax for relevant employees where earnings are not remitted under section 825B of the Principal Act.
The Minister for Finance consents to the making of these Regulations.
GIVEN under the Official Seal of the Minister for Finance.
14 January 2011.
BRIAN LENIHAN,
Minister for Finance.
GIVEN under my hand,
17 January 2011.
MICHAEL O’GRADY,
Revenue Commissioner.
EXPLANATORY NOTE
(This note is not a part of the Instrument and does not purport to be a legal interpretation.)
These Regulations are made by the Revenue Commissioners under section 817Q of the
Taxes Consolidation Act 1997
(inserted by the
Finance Act 2010
) with the consent of the Minister for Finance.
The Regulations deal with matters arising out of the Mandatory Disclosure of Certain Transactions legislation contained in Chapter 3 of Part 33 of the
Taxes Consolidation Act 1997
. Chapter 3 introduced a new mandatory disclosure regime that places obligations primarily on promoters of certain tax-related transactions to give details of those transactions to the Revenue Commissioners, explaining how the transactions are intended to work. The transactions affected are those that have as a main benefit the obtaining of a tax advantage and that match certain features (i.e. “specified descriptions”) set out in the Regulations.
In addition to setting out the classes of transactions that are to be transactions of a “specified description” for the purposes of the mandatory disclosure regime and the circumstances in which they are to apply to particular transactions (Regulations 7 to 15), the Regulations also set out the following operational aspects of the disclosure regime
• The specified information that has to be provided to the Revenue Commissioners by a promoter or, as appropriate, a user about a disclosable transaction (Regulation 16).
• The specified time periods within which the specified information about a disclosable transaction has to be provided to the Revenue Commissioners (Regulations 17 to 21).
• The specified time periods within which other information (e.g. client lists) has to be provided to Revenue Commissioners (Regulations 22 to 26).
• The transitional arrangements that will apply as regards the periods within which specified information about disclosable transactions has to be provided (Regulation 27).
• The circumstances in which a person is not to be treated as a promoter in relation to a disclosable transaction for the purpose of the legislation (Regulations 28 to 30).
• The form and manner of delivery of the information to be provided to the Revenue Commissioners (Regulation 31).
In addition, the Schedule to the Regulations specifies certain transactions that do not come within certain of the classes of transaction which have to be reported.
18. Subject to Regulation 21, where the specified information referred to in Regulation 16 is to be provided under section 817E of the Principal Act, the period of time shall be the period of 5 days beginning on the day after the relevant date.
Specified period where promoter outside the State or asserts legal professional privilege
19. Subject to Regulation 21, where the specified information referred to in Regulation 16 is to be provided under section 817F or 817H(1) of the Principal Act, the period of time shall be the period of 5 days beginning on the day after the day the person enters into the first transaction forming part of the disclosable transaction.
Specified period where there is no promoter
20. Subject to Regulation 21, where the specified information referred to in Regulation 16 is to be provided under section 817G of the Principal Act, the period of time shall be the period of 30 days beginning on the day after the day the person enters into the first transaction forming part of the disclosable transaction.
Disregarding of non-business days
21. In determining any specified period for the purposes of Regulations 18 to 20 any day which is a non-business day shall be disregarded.
PART 6 Specified period within which other information to be provided
Specified periods — general
22. The periods specified in Regulations 23 to 25 are each a specified period for the purposes of Chapter 3 of Part 33 of the Principal Act.
Specified period where promoter asserts legal professional privilege
23. Subject to Regulation 26, a promoter who by virtue of section 817J of the Principal Act does not comply with section 817E of that Act shall, within the period of 5 days beginning on the day after the relevant date, inform the Revenue Commissioners of the non-compliance and provide the Commissioners with the name, address, telephone number and tax reference number of the promoter.
Provision by promoter of client list
24. (1) Subject to Regulation 26, a person who is required, under section 817M of the Principal Act, to provide the Revenue Commissioners with a client list (within the meaning of that section) shall provide such list to the Commissioners—
(
a
) within the period of 30 days beginning on the day after the day on which—
(i) the promoter first makes the disclosable transaction concerned available to a person for implementation, or
(ii) in a case where the relevant date is the date referred to in paragraph (
c
) of the definition of “relevant date” in section 817D(1) of the Principal Act, the promoter first becomes aware of any transaction forming part of the disclosable transaction having been implemented,
and
(
b
) thereafter, subject to paragraph (3), within the period of 5 days beginning on the day after the end of each quarter.
(2) For the purposes of this Regulation “quarter” means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
(3) Paragraph (1)(
b
) shall not apply to a quarter during which the promoter—
(
a
) has not made the disclosable transaction available to a person for implementation, or
(
b
) has provided the Revenue Commissioners with a client list in accordance with paragraph (1)(
a
) and has not made the disclosable transaction available to any other person for implementation in the period from the date the client list was provided to the Revenue Commissioners to the last day of the quarter concerned.
(4) A client list required to be provided to the Revenue Commissioners in accordance with paragraph (1)(
b
) (in this paragraph referred to as the “latest client list”) shall not include the name, address and tax reference number of any person who has been included in a client list in respect of the disclosable transaction to which the latest client list relates, in any preceding quarter.
Specified period relating to Appeal Commissioners’ determinations
25. Subject to Regulation 26, where, following an application by the Revenue Commissioners in accordance with subsection (1) of section 817P of the Principal Act in relation to any of the matters referred to in that subsection, the Appeal Commissioners make a determination in accordance with paragraph (
a
)(i), (
b
)(i), (
c
)(i), (
d
)(i) or (
e
)(i), as the case may be, of subsection (2) of that section—
(
a
) the information or documents to be made available to the Revenue Commissioners by a person on foot of the determination (where the determination is made in accordance with paragraph (
a
)(i), (
b
)(i) or (
c
)(i) of that subsection), or
(
b
) the specified information to be made available to the Revenue Commissioners by a person in consequence of the determination (where the determination is made in accordance with paragraph (
d
)(i) or (
e
)(i) of that subsection),
shall be made available within the period of 5 days beginning on the day after the date of the determination.
Disregarding of non-business days
26. In determining any specified period for the purposes of Regulations 23 to 25, any day which is a non-business day shall be disregarded.
PART 7 Transitional arrangements
Transitional arrangements
27. For the purposes of Regulations 18 to 20 and 23 to 25, a period of time referred to in any of those Regulations which, apart from this Regulation, would end before 15 April 2011 shall end on that date.
PART 8 Circumstances in which person not to be treated as promoter
Groups
28. (1) A person shall not be treated as a promoter, in relation to a disclosable transaction, for the purposes of Chapter 3 of Part 33 of the Principal Act where—
(
a
) the person carrying on the relevant business is a company (in this Regulation referred to as the “first-mentioned company”), and
(
b
) on the relevant date, each other person to whom the first-mentioned company provides services relating to taxation in connection with a transaction is a company which is a member of the same group as the first-mentioned company.
(2) For the purposes of this Regulation “group” has the same meaning as it has in the definition of “relevant business” in section 817D(1) of the Principal Act.
Employees
29. (1) An individual shall not be treated as a promoter for the purposes of Chapter 3 of Part 33 of the Principal Act where he or she is an employee of an employer who is—
(
a
) a promoter in relation to the transaction concerned, or
(
b
) a person who enters into any transaction forming part of a disclosable transaction where that person is required under section 817G of the Principal Act to provide the Revenue Commissioners with specified information in relation to the transaction.
(2) For the purposes of this Regulation an employee of a person who is connected (within the meaning of section 10 of the Principal Act) with another person shall be treated as an employee of that other person.
Other circumstances
30. A person shall not be treated as a promoter for the purposes of Chapter 3 of Part 33 of the Principal Act where—
(
a
) in the course of providing tax advice, the person is not responsible for the design of the disclosable transaction (including the way in which the transaction is structured) from which the tax advantage expected to be obtained arises,
(
b
) in the course of a business that is a relevant business by virtue of paragraph (
a
) of the definition of “relevant business” in section 817D(1) of the Principal Act, the person is to any extent responsible for the design of the disclosable transaction (including the way in which the transaction is structured) from which the tax advantage expected to be obtained arises but does not provide tax advice in the course of carrying out his or her responsibilities in relation to the disclosable transaction, or
(
c
) the person is not responsible for the design of all of the elements of the disclosable transaction (including the way in which the transaction is structured) from which the tax advantage expected to be obtained arises and could not reasonably be expected to have sufficient information as would enable the person—
(i) to know whether or not the transaction is a disclosable transaction, or
(ii) to comply with the requirements of section 817E of the Principal Act.
PART 9 Miscellaneous
Form and manner of delivery of information
31. Information required to be provided to the Revenue Commissioners under Chapter 3 of Part 33 of the Principal Act and these Regulations shall be delivered in such form and manner, including by electronic means, as may be specified by the Revenue Commissioners from time to time and to such office of the Revenue Commissioners—
(
a
) as is so specified, or
(
b
) as may be identified in guidelines issued by the Revenue Commissioners relating to Chapter 3 of Part 33 of the Principal Act and these Regulations, as the office to which the information should be sent.
SCHEDULE Transactions to which these Regulations do not apply