Tax

Having read the 1,246-page Trade and Cooperation Agreement, which was agreed to “in principle” by the EU and UK on Christmas Eve, Cróna Clohisey shares her thoughts on the critical elements causing concern and highlights areas that warrant further work. In recent weeks, there has been as much discussion about what the Trade and Cooperation Agreement (TCA) reached between the EU and UK on Christmas Eve doesn’t cover as what it does. The deal, spanning some 1,246 pages, threw up some surprises and certainly left a lot for discussion between the two sides in the months ahead. The main areas covered in the document include trade in goods and certain services, energy, aviation and road transport, fisheries, social security coordination, law enforcement, digital trade and intellectual property. Certain big-ticket items, including decisions relating to equivalence for financial services, the adequacy of the UK’s data protection regime, or an assessment of the UK’s sanitary and phytosanitary regime were excluded, however. These three areas, in particular, are unilateral decisions of the EU and were never subject to negotiation. The TCA does not govern trade in goods between Northern Ireland and the EU where the Protocol on Ireland and Northern Ireland will apply, bringing a whole other set of rules – not least in customs and VAT. Implementing, applying, and interpreting the TCA falls to the newly created Partnership Council. This political body will be co-chaired by a European Commission member and a UK government minister, and decisions will be made by mutual consent. Several specialised committees, including a trade partnership committee, will assist the Partnership Council. Therefore, it seems that negotiations between the EU and the UK on their future relationship are set to continue long into the future.  In this article, I will look at the TCA elements that are causing concern or require further work. Trade in goods and customs The real test for cross-border trade between the UK and EU is really just beginning, given that traffic at ports and borders is generally quieter in the weeks after Christmas. Still, problems with paperwork (which could never be removed by a free-trade agreement), health checks and systems were reported by many companies in the first few weeks of the year. We have heard reports of large retailers reporting shortages on their shelves with retailers in Northern Ireland significantly affected given the customs declarations required for goods brought into Northern Ireland from Great Britain – a requirement that seems to have taken some by surprise.   The TCA’s chapter on rules of origin is particularly cumbersome and has already hampered, and is expected to continue to hamper, existing supply chains. The ‘zero tariffs, zero quotas’ headline celebrating free trade is not all it seems, particularly when only eligible goods qualify for this approach. Rules of origin determine a product’s economic nationality and where products ‘originate’ is the fundamental basis for determining if tariffs apply. The TCA says that for products to benefit from zero tariffs and zero quotas, goods must be wholly obtained from, or manufactured, in the EU or UK or be substantially transformed or processed in the EU or UK in line with the specific origin rules that apply to the product being exported. Minor handling, unpacking and repacking won’t qualify as sufficiently processed. There could be issues for goods not wholly grown, farmed, fished or mined in either the UK or EU.  The amount of non-originating materials (i.e. materials not originating in either the EU or UK) that a product can have in order to still benefit from the TCA differs depending on the product. The annexes to the TCA set out the product-specific rules, and you will need to identify the commodity code as a starting point. Some products allow a maximum level of non-originating content (e.g. 50% of the ex-works selling price), but again this varies from product to product. If, for example, products are processed in the UK, the TCA states that EU origin materials and processing can be counted when considering whether UK exports to the EU meet rules of origin requirements. There is a qualifying production level, for example, called ‘cumulation’. Another nuance is that some rules of origin require that non-originating inputs used in the production of a good must have a different tariff heading, while some rules require a specific operation to take place in the UK for the goods to be classed as being of UK origin. For certain chemicals, for example, a chemical reaction must occur in the UK. It’s also important to remember that when goods are exported from a customs territory, origin status is lost (preferential origin status can only apply once). Take leather shoes originating in Spain as an example. When the shoes move from Spain to Great Britain and are then shipped to Ireland, they lose their EU preferential origin status when they leave Great Britain. Because they haven’t been processed or altered in Great Britain, they don’t have UK origin. Therefore, unless the goods move under a special and complicated customs procedure, duties arise on the goods entering Ireland. The now infamous case of Marks & Spencer’s Percy Pig confectionery is an example of this issue. These issues add to supply chain headaches and give rise to hidden costs. The rules are undoubtedly complex and don’t suit the UK’s significant role as a distribution hub. Business travel Free movement of people between the EU and UK ended on 1 January 2021. Of course, Irish and UK citizens are still free to live, travel and work in either country under the rules of the Common Travel Area (CTA). Beyond this category of people, immigration requirements – including securing permission to work and restrictions on the activities that can be performed as business travellers – are now a key consideration for UK nationals moving throughout the rest of the EU, including UK citizens residing in Ireland. Similar policies are in place for EU nationals seeking to travel to, and work in, the UK. The CTA allows short-term business visitors to enter either jurisdiction visa-free for 90 days in any given six-month period, but there are restrictions on the activities that can be performed. Activities such as meetings, conferences, trade exhibitions, and consultations are allowed. However, anything that involves selling goods or services directly to the public requires a work visa. The specific business situations where a visa is required are set out in the annexes to the TCA. The environment In a first for the EU, the fight against climate change has been included as an “essential element” in a bilateral agreement with a third country. This effectively means that if the EU or the UK were to withdraw from the Paris Agreement or take measures defeating its purpose, the other side would have the right to suspend or even terminate all or part of the TCA. The TCA paves the way for a joint framework for cooperation on renewable energy and other sustainable practices, as well as the creation of a new model for energy trading. However, it allows both sides to set their own climate and environmental policies in areas such as carbon emissions/carbon pricing, air quality, and biodiversity conservation. Divergence from respective environmental and climate laws will be monitored, but this area is not subject to the TCA’s main dispute resolution mechanism. It will instead be governed by a ‘Panel of Experts’ procedure. Time will tell how effective this will be. Data transfers Many businesses rely on the ability to transfer personal data about their customers or employees to offer goods and services across borders. A company based in Belfast, for example, might outsource its payroll processing to a company based in Galway. In this case, any restriction on this data’s ability to flow freely would act as a trade barrier. The EU and UK haven’t concluded a deal yet to allow data to continue to flow freely across borders, but the EU has committed to a decision on the adequacy of the UK’s system (UK GDPR) by 30 June 2021. Until then, the UK will be treated as if it is still part of the EU on data protection grounds, and data can continue to flow freely between jurisdictions. If the EU doesn’t reach an adequacy agreement (although reports suggest that a deal is close), provisions such as standard contractual clauses may be needed in future transfers of data between the UK and EU. Financial services Currently, the UK has identical rules to the EU in terms of the regulation of financial services. Supplementary documentation published with the TCA states that the UK Treasury and European Commission aim to sign a cooperation agreement covering financial services regulation by March 2021. The EU has already deemed the UK equivalent for a time-limited basis in clearing and transaction settlement, while the UK has provided the EU with specific findings that would enable EU member states to conduct such business in the UK. Many other areas of the TCA will be digested and interpreted in the weeks and months ahead. Trade deals are predominantly about trade. Only time will tell if they go far enough in other areas such as environment, security and intelligence, or healthcare, for example. Let’s hope that in the long run, a deal is better than no-deal. POINT OF VIEW:  Barry Cullen, Silver Hill Duck Silver Hill Duck is a perfect example of a cross-border business and the various challenges posed by the new trading relationship between the EU and the UK. Silver Hill Duck is a duck manufacturing company based in Emyvale, Co. Monaghan, with operations in Northern Ireland and the Republic of Ireland. The company controls all aspects of the breeding, farming, production and packaging of its famous Silver Hill Duck breed. Established in 1962, it has supplied the best Chinese restaurants in the UK for the past 40 years. During this time, the company has expanded its customer base to include retail and foodservice, including a range of raw and cooked products. Barry Cullen, Head of Sales at Silver Hill Duck and President of the Irish Exporters Association, shares the background to his company’s commercial decisions. “The UK was historically our largest market, and we took some steps before 1 January 2021 to avoid the expected delays that were predicted at the ports. This involved setting up a Northern Ireland company with the appropriate VAT and EORI numbers, and a customs clearance agent to handle the paperwork. Silver Hill also had to source a warehousing partner in the UK that could hold frozen stock for our UK customers. Trading with our fresh retail customers was suspended for the first few weeks in January due to the uncertainty around delays at ports and the documentation required. The first few weeks of 2021 has shown that this was a prudent decision, as it has become apparent that the UK is nowhere near ready for the new trading requirements. There are major delays at Holyhead with hauliers unable to access the Irish market due to incorrect paperwork and a COVID-19 testing regime that has exacerbated the problem. It’s a case of learning on the job as our sales team feels its way through the many documentation requirements to send a pallet of product to the UK. For example, despite having done due diligence for over three years, we were not aware of the REX system and the need to be registered to self-certify our goods. Even though there are no actual tariffs, the customs clearance costs are high at approximately €120 per order, regardless of size, if you act as exporter and importer for the UK customer. This will make much retail business commercially unviable and will have a significant knock-on effect on small- and medium-sized enterprises in the coming months. There will undoubtedly be a settling-in period for the new trading requirements, but the cost for traders, hauliers and suppliers is as yet uncertain.”   Cróna Clohisey is Public Policy Lead at Chartered Accountants Ireland.

With international tax reform progressing at unprecedented speed, Susan Kilty explains why Irish businesses must continue to participate actively in the discussion. With all the global uncertainty that Ireland is facing due to COVID-19 and Brexit, there is a risk that the OECD global tax reforms – the other major threat to Irish business and the economy – will be pushed further down the corporate agenda. But to do so would be very risky. Ireland must engage with this process now, at both the political and corporate level. The world of international tax is in a state of extreme flux as governments grapple with changes in the way multinationals do business. It is worth reiterating that Ireland has attracted healthy levels of foreign direct investment (FDI) over the past 30 years, and the multinational community has contributed significantly to our economic success. According to the OECD, Ireland received more foreign direct investment in the first half of this year than any other country. Along with Ireland’s near-iconic 12.5% tax rate, a crucial element in our continuing ability to attract international investment is the stability and transparency of the corporate tax regime here. Investors from abroad who establish activities in Ireland tend to be quite sensitive to changes in the taxation system. They like certainty and stability in a tax code, which is why Ireland presents such an attractive proposition. Ireland cannot afford to lose FDI as a result of turbulence in the global tax landscape at this time. As corporation tax accounts for almost 18% of Ireland’s total tax take, any change to the regime threatens to seriously undermine the attractiveness of our FDI model and negatively impact our revenue-raising ability. The crux of the matter is that we, and many other countries, apply 20th century tax systems to 21st century e-commerce business models. Businesses have an increasingly digital presence, and many no longer trade out of brick and mortar locations. This is not limited to so-called technology companies, but can be seen across industries and in businesses of all sizes. Businesses sell freely across borders without ever needing to set up operations abroad. This new digital way of trading is not always captured in our analogue tax rules, and the rules must be realigned with the reality of modern e-commerce. However, to tax a multinational business, you need a multinational set of rules. This is where the OECD comes in, but the uncertain shape that the new rules might take brings more uncertainty for businesses at a time when it is least needed. Many clients cite the changing international tax environment as one of the top threats to potential revenue growth. And although countries now face enormous bills for COVID-19, one sure thing is that BEPS, OECD and tax reform will not go away. International corporate tax reform is happening, and it will impact many businesses and our economy. Companies need to stay on top of these changes and prioritise the issues that will affect them. OECD proposals The OECD proposals offer a two-pillar solution: one pillar to re-allocate taxing rights and ensure that profits are recorded where sales take place, and a second pillar to ensure that a minimum tax rate is paid. At the time of writing, a public consultation is open for stakeholders to share their views with the OECD on the proposals that were recently summarised by way of two “blueprint” documents, one for each pillar. Pillar One seeks to give market jurisdictions increased taxing rights (and, therefore, increased taxable income and revenues). It aims to attribute a portion of the profits of certain multinational groups to the jurisdictions in which their customers are based. It does this by introducing a new formulaic allocation mechanism for profits while ensuring that limited risk distributors take a fair share of profits. Several questions remain as to how the Pillar One proposals, which constitute a significant change from the current rules, will be applied. Pillar Two, on the other hand, seeks to impose a floor for minimum tax rates across the globe. This proposal is very complicated. It is much more than a case of setting a minimum rate of tax. It is made up partially of a system that requires shareholders of companies that pay low or no tax to “tax back” the profits to ensure that they are subject to a minimum rate. At the same time, rules will apply to ensure that payments made to related parties in low-tax-paying or no-tax-paying countries are subject to a withholding tax. Finally, it can alter the application of double tax treaty relief for companies in low-tax-paying or no-tax-paying countries. Agreeing on the application and implementation of this pillar will be incredibly difficult from a global consensus point of view. Several supposed “safety nets” in Pillar Two are also likely to be of limited application. For example, assuming that the minimum tax rate is set at 12.5%, this does not mean that businesses subject to tax in Ireland will escape further tax. Similarly, assuming that the US GILTI (global intangible low-taxed income) rules are grandfathered in the OECD’s proposal, this does not mean that the US GILTI tax applies as a tax-in-kind tax for Pillar Two purposes. Pillar Two poses a significant threat to Ireland, as it reduces the competitiveness of our 12.5% rate to attract FDI and, coupled with the Pillar One profit re-allocations, could reduce our corporate tax take. The OECD estimates that once one or both of the pillars are introduced, companies will pay more tax overall at a global level, but where this tax falls is up for negotiation – and this is why early engagement by all stakeholders is critical. While the new proposals will undoubtedly have an impact, it is not certain that Ireland’s corporation tax receipts will fall off a cliff. Ireland has already gained significantly in terms of investment from the first phase of OECD tax reform, and this has helped to drive a significant increase in corporate tax revenue. But the risks must nevertheless be addressed. There is, of course, the risk that the redistribution of tax under the rules directly under Pillar One and indirectly via Pillar Two will impact our corporate tax take. But even if the rules have no impact on a company’s tax bill, they could still impose a considerable burden from an administrative perspective, and the complexity of the rules cannot be overestimated. At a time when businesses are grappling with other tax changes, led by the EU and domestic policy changes, this would be a substantial additional burden on the business community. The OECD is progressing the rules at unprecedented speed in terms of international tax reform. The momentum behind the process comes from a political desire for a fair tax system that works for modern business. However, does this rapidity risk the international political process marching ahead of the technical tax work? This is where Ireland, both government and corporate, needs to play a vital role. While the consultation period on both pillars is open, the focus for stakeholders should be on consulting with the OECD on the technical elements of its plan. Considering the OECD’s stated objective to have a political consensus by mid-2021, this could be one of the last opportunities for stakeholders to have a say in writing the rules. The interplay between the OECD and the US Treasury cannot be ignored when considering the OECD’s ability to get the proposals over the line. The US Treasury decided to step away from the consultation process with the OECD for a period in mid-2020. This, of course, raised questions around whether the OECD proposals could generate a solution that countries would be willing to implement. Added to this, the OECD has always positioned Pillar One and Pillar Two as an overall package of measures and has stressed that one pillar would not be able to move forward without the other. The “nothing is decided until everything is decided” basis of moving forward is a risky move, but the OECD recently rowed back on this stance. If the OECD fails to reach a political consensus by 2021, we could very well see the EU act ‘en bloc’ to introduce a tax on companies with “digital” activities. This could result in differing rules within, and outside of, the EU. It would also increase global trade tensions, all of which would not be good for our competitiveness. As a small open economy, Ireland will always be susceptible to any barriers to global trade. A multilateral deal brokered by the OECD therefore remains the best option – the last thing we want to see is the EU accelerating its own tax reform or, worse still, countries taking unilateral action. For the Irish Government, providing certainty where possible about the future direction of tax is critical. Where we have a lead is in how we provide that stability and guidance where we can. The upcoming Corporate Tax Roadmap from the Department of Finance will be an opportunity to give assurances in these uncertain times. Next steps for business The public consultation will be critical for businesses to have their say in shaping the rules. Ireland Inc. must continue to engage constructively with the OECD to try to shape the outcome so that we maintain a corporate tax system that is fit for purpose, is at the forefront of global standards, and works for businesses located here. Doing so would ensure that we articulate the position of small open economies like our own. Each impacted business must take the opportunity to comment on the proposals, as this may be the last chance to have a say. Indeed, what comes out of the consultation period may be the architecture of the rules for the future. We know that difficult decisions must be made at home and abroad in terms of the new tax landscape, and made with additional pressures we could not have foreseen 12 months ago. Although it may seem that much is out of our control, Irish businesses must continue to participate actively in the discussions and ensure that their concerns are heard. The game may be in the final quarter, but the ball is in our hands. Susan Kilty is a Partner at PwC Ireland and leads the firm’s tax practice. Point of view: Fergal O'Brien Since the start of the BEPS process in 2013, Irish business has recognised the importance of the work to our business model and the country’s future prosperity. At its core, BEPS has seen a further alignment of business substance and tax structures at a global level. This has resulted in an often under-appreciated surge in business investment, quality job creation and, ultimately, higher tax revenue for the Irish State. With its strong history as a successful location for foreign direct investment, and substance in world-class manufacturing and international services, Ireland was well-placed to benefit from the new global order. The boom in business investment, which last year reached over €3 billion every week, and increase in the corporate tax yield from €4 billion in 2013 to €11 billion in 2019, are evidence of the further embedding of business substance in the Irish economy. The current round of BEPS negotiations will have further significant implications for the Irish economy, and particularly for the rapidly growing digital economy. Ibec is working directly with the OECD to ensure that any further changes to corporation tax recognise the central role of business substance and locations of real value creation. Fergal O’Brien is Director of Policy and Public Affairs at Ibec.  Point of view: Norah Collender The OECD’s proposals to address the challenges of the digitalised economy will have a disproportionate negative impact on small, open exporter economies like Ireland. Earlier consultation papers issued by the OECD on taxing the digitalised economy suggested that smaller economies could benefit from international tax reform emanating from the OECD. However, the OECD now openly admits that bigger countries stand to benefit from its proposals more than smaller countries, and the carrot has turned into the stick in terms of what will happen if smaller countries do not support the OECD. Ireland is acutely aware of the dangers ahead if countries take unilateral action to achieve their vision of international tax reform. But that does not mean that countries like Ireland should be rushed into accepting international tax rules that fundamentally hamstring Irish taxing rights. Genuine consensus must be reached to ensure that international tax reform is sustainable in the long-term. Likewise, the new tax rules must be manageable from the multinational’s perspective and from the perspective of the tax authority tasked with administrating the rules. A rushed outcome to the important work of the OECD will make for tax laws that participating countries, tax authorities, and the all-important taxpayer may not be able to withstand in the long-term. Norah Collender is Professional Tax Leader at Chartered Accountants Ireland. Point of view: Seamus Coffey How Pillar One and Pillar Two of the OECD BEPS Project will ultimately impact Ireland is uncertain. One sure thing, however, is that there will be changes to tax payments. This will be a combination of a change in the location of where taxes are paid and perhaps also an increase in tax payments in some instances. But there will likely be both winners and losers. From an Irish perspective, there might have been some comfort in that the loser could have been the residual claimant – the country at the end of the chain that gets to claim taxing rights on the profits left after other countries have made their claim. As US companies are the largest source of Irish corporation tax revenue, it might have been felt that most of the losses would fall on the US. However, significant amounts of intellectual property have been on-shored here. Ireland, therefore, has become a residual claimant for the taxing rights to some of the profits of these companies. At present, Ireland is not collecting significant taxes from these profits as capital allowances are claimed. If BEPS results in a significant reallocation of these profits, we might never collect much tax on them. Seamus Coffey is a lecturer in the Department of Economics in University College Cork and former Chair of the Irish Fiscal Advisory Council.

Tony Buckley shares eight tips to help businesses plan for a bright post-Brexit future and explains how Ireland could ultimately emerge from the mayhem as a nation of international market-making traders. Well, now we know – or do we? We are getting used to the new reality of the UK as a third country, but the UK’s relationships will continue to evolve and the changes to our way of doing business will take some time to show their impact fully. The process of realising and adjusting to change is, in many ways, just beginning. The Brexit process has taken us through some unprecedented scenes, scarcely believable public debates, and commentary that veered from “it won’t change anything” to apocalyptic descriptions of “cliff-edge” and “crash-out” and invocations of the spirit of the Blitz. In fairness, confusion and a lack of clarity were inevitable. Never before, outside of wartime, was there an attempt to consciously create a full border in the middle of an integrated and prosperous market. With it comes the risk of re-imposing all the impediments to trade so successfully lifted by the Single Market and, going back even further, the customs duties and quotas that were eliminated in 1973. Borders and their accompanying strictures usually develop over a very long period, and the countries on either side grow with, and adapt to, the border as a simple reality of life and business. Brexit proposed to dismantle a vast number of accepted and profitable practices and trading structures and reform them for a new and ill-defined reality. Daily life was going to change, but no-one could provide a full and detailed picture. The best that could be concluded was that the short-term effects would not be good. Setting the political framework was imperative so that the legal, regulatory and administrative structures and systems could be developed in good time. Unfortunately, due to various factors, the political process took up almost all of the time available and resulted in uncertainty up to the last minute. It is only fair to say, however, that with something of this scale, some lack of preparedness is unavoidable, leaving much to be resolved in the ‘live’ environment of EU-UK separation. Trade tends to find a way through. In modern Western Europe, where the benefits of free-flowing trade and commerce are so visible, all governments regard the facilitation of trade as a critical priority. We can see that in the solutions that have been created to keep trade flowing in January 2021. Without the urgency of Brexit, some of the changes, especially for Ro-Ro, would have taken years of negotiation and planning. So, not everything is in place, and the practical administration has not bedded down into the smooth operating models that will emerge. Teething troubles are expected in any new system, and this is an enormously complicated situation. Nevertheless, we can be sure that by the end of 2021, the new reality will be as well understood as was the old. At that stage, we will be able to properly take stock, count the cost, seek the benefit, and adjust our future planning. At the moment, many businesses are shouldering significantly increased cost to ensure that goods continue to move across borders in the short-term. The agents, freight forwarders and express carriers who can navigate the new rules and systems are not cheap. The generally accepted estimate is that customs will add about 4% to the cost of traded goods. For most of 2021, and possibly beyond, this is likely to be an underestimate for Irish and UK businesses, which are struggling with a shortage of expertise and capacity in customs and trade support services, not to mention long-standing supply chains and agreements that are no longer fit for purpose. The way forward will be different for each entity. The following is not intended as a full guide, but as a small collection of tips that appear to apply to most businesses. 1. Don’t be hasty The new systems and rules are permanent. They therefore represent a quantum shift in the operating parameters of business – not just for traded goods, but for all businesses directly or indirectly affected by Brexit (which is virtually all Irish businesses). For that reason, don’t rush. It may be worthwhile to incur very high costs in early 2021 for the benefit of breathing space. This will, in turn, allow you to design and tailor suitable long-term arrangements. 2. Understand the changes Costs must be managed. For those that cannot change their prices, the question is whether the margin reduction can be minimised and made sustainable. If not, the wisest course is to change direction early. There are many options to reduce costs or find off-setting benefits, but the first requisite is that the business planners (owners and advisors) fully understand the rules of the game. Customs and international trading rules are, and will remain, central considerations in planning any business involving, or connected to, the UK. We are well used to the need to understand tax exposure. We now need to become familiar with the complexities of international trade, which have not been relevant to European trade since 1993. 3. Nothing is untouchable Established structures, devised for a variety of reasons from tax efficiency to comparative cost advantage to administrative preference, must be reappraised. One of the most common challenges encountered by those advising on Brexit preparation is the insistence that existing structures and practices cannot be changed. This position usually stems from a failure to appreciate the cost of failing to optimise the supply chain. 4. Supply chains must change Commercial agreements must reflect the new reality. Many of the goods sold in Ireland arrive here via UK distributors. It makes no sense to pass goods through two sets of customs and market regulations. Standing agreements will not be easy to renegotiate, but the alternative is a significant impact on cost. 5. Check the small print Irish companies are, on average, smaller than their UK trading partners and a higher proportion of Irish companies depend on the trade. Irish companies must resist the strong temptation to agree to dictated trading terms without fully understanding the costs involved. 6. Manage expectations Consignments will get bigger on average, and for a good reason. Just-in-time and small deliveries are disproportionately expensive when compared to less frequent full loads. Test your customers’ tolerance for less demanding delivery schedules. 7. Invest in your market For a UK-based business, buying goods and components from a UK producer is preferable as the producer retains responsibility for standards, quality and customer rights. Purchasing from an Irish (or other EU) producer transfers all the producer’s responsibilities to the importer. For this and other logistical reasons, serious consideration should be given to establishing in the UK if significant and long-term business is planned there. 8. Look for opportunities Don’t overlook the unique position that has been accorded to Northern Ireland. While the operation of the Protocol on Ireland/Northern Ireland is complicated, its possibilities are likely to repay close exploration. More generally, be aware that the advantages enjoyed by UK business – free access and large scale, for example – are significantly reduced in their effectiveness in a post-Brexit world. The competitive position of Irish business has therefore improved in the Irish and EU markets. These points may appear to be an extreme reaction. A common belief (or hope) is that the adjustment can be made with minimal cost – just an addition to variable cost that can be passed on. The reality is that, while some will struggle on without adaptation for some time, their costs will ultimately leave them uncompetitive with those who read the writing on the wall and adapt accordingly. Services have not been extensively dealt with in the EU-UK talks so far. The result is that, broadly speaking, services to and from the UK will operate similarly to any other non-EU country. The principles outlined above also apply here. There is a new reality, with national borders inhibiting the free movement of services. A similar reappraisal and planning exercise must be conducted. We are, I believe, looking forward to a new awareness of international trade in Ireland that will significantly benefit our ability to operate in world markets. Traditionally, only the largest companies in Ireland had those skills. The vast majority of Irish importers and exporters dealt only with the UK or within Europe and failed to develop the skills and knowledge that would have enabled them to become market-makers. That is changing, and I look forward to the prospect in a few years of Ireland as a nation of international traders. In summary, we are entering a critical period for Ireland’s traded goods and services sectors. If we adapt well, as we have the ability to do, we may find ourselves stronger, more agile, and a better place for small enterprise to flourish. This is not to minimise the inevitable prospect of business failure and job losses that will follow the economic and social turmoil caused by COVID-19. We must, however, look to better times ahead – and I believe that they are attainable. Tony Buckley is former Head of Revenue’s Customs division and Programme Lead for Chartered Accountants Ireland’s Certificate in Customs and Trade. Point of view: Crona Clohisey The UK is entering a new world, standing aside from Europe amid promises that it will have greater control over its destiny. Brexit could be an opportunity for Britain to reinvent itself, to cast itself off from Europe and thrive in the world on its own. But one must ask: can Brexit work? Britain’s place in this new world will not be determined on 1 January 2021; it will emerge in the months and years ahead. Indeed, some studies suggest that that Brexit will boost economic output by 7% while others say it will be reduced by almost 20%. The opportunities afforded by Brexit are often overlooked. The UK will remain an attractive place to do business and will also be free to forge new trade deals. That said, there will initially be disruption and challenges for businesses in Ireland and the UK, particularly for those dealing with customs administration for the first time. The Irish economy will remain heavily exposed to the UK, and a working UK-Ireland relationship must continue beyond Brexit. The Protocol on Ireland/Northern Ireland will avoid the need for a land border on the island of Ireland. However, trade barriers between Northern Ireland and the rest of the UK must not result. Cróna Clohisey is Public Policy Lead at Chartered Accountants Ireland. Point of view: Jason McIntosh Preparations for Brexit began shortly after the referendum result – particularly for businesses located near to, or trading across, the border between Northern Ireland and the Republic of Ireland. Information and support have recently increased in availability. With the terms of a future trading relationship still unclear just weeks before the deadline, businesses have found industry resources (Chartered Accountants Ireland’s recent webinars, for example) hugely beneficial. A central pillar of successful Brexit preparation is the involvement of all relevant departments, from finance and purchasing to HR and communications, in a business. Such a collaborative approach allows for detailed impact analysis and the drafting of a robust action plan, which must have the buy-in of senior management. The impacts of Brexit extend beyond the import and export of goods. For businesses located on the island of Ireland, for example, employees might cross the EU border for work. While the risk of delays at the border for people seems to be subsiding, there will continue to be taxation and employment law impacts to consider. Taking advice will, therefore, be crucial.  Jason McIntosh is Finance Manager at Seagate Technology.

The Temporary Wage Subsidy Scheme has ceased as of August 2020, but what does this mean for employers and their employees in terms of tax liabilities? Olive O’Donoghue explores the different options available. While the Temporary Wage Subsidy Scheme (TWSS) ceased at the end of August 2020, there are three main projects to be completed before the scheme will be fully closed off:  Revenue’s reconciliation; finalisation of employer compliance checks; and payment of employee taxes. The main objective of the reconciliation process is to ensure Revenue recoup any excess subsidy paid to employers. While the expectation would be that most overpayments occurred in the Transitional Phase of the TWSS (mainly because, for the first few weeks, employers received a flat €410 per eligible employee per week irrespective of the amount due), it is possible that overpayments may also have occurred for other reasons. For example, a clawback of subsidy would also be required where an employer has paid an employee more than their average revenue net weekly pay. All employers who availed of the TWSS should have already submitted details of subsidies paid to employees over the course of the scheme. Following receipt of these files, we understand that the reconciliation process is underway. While we expect this process to be finalised by the end of 2020, a fixed date has not yet been provided by Revenue. The employer compliance checks continue and, while many employers have already received the letters from Revenue, a number are still issuing. Throughout the operation of the TWSS, Revenue stated that it would adopt a pragmatic approach in assessing an employer’s eligibility for the scheme, and the experience with compliance checks supports this. It is worth noting that Revenue is utilising the compliance check process as an opportunity to raise queries/concerns on PAYE real time reporting issues, so employers should be mindful of this as they move through the compliance process. The tax treatment of subsidies payable under the TWSS has been a contentious issue amongst employers and employees, mainly due to the impact this treatment has to an eligible employee’s overall net pay position for 2020. While there has been significant push back from various bodies and interested parties over the last few months, unfortunately Revenue’s position remains that the TWSS will be subject to income tax and USC. In January, all eligible employees will receive a preliminary end of year statement from Revenue via Revenue’s MyAccount. This will show an employee’s estimated tax liability for 2020 – or, in some cases, a refund. The employee may wish to claim additional reliefs, such as medical expenses, additional pension contributions, etc. Once the final liability is determined, the employee can choose how they would like it to be settled. The employee may choose to settle the liability in full, directly with Revenue, make a part-payment to Revenue upfront with the balance being paid by way of reduced tax credits over four years from 2022, or elect for the full liability to be settled by way of reduced credits over four years from 2022. Recently, Revenue helpfully issued an update advising employers that they can settle the employees’ tax liabilities arising from the TWSS without a gross-up being required through payroll. The guidance notes that employers can make a payment to each employee to settle their liability directly with Revenue or, alternatively, an employer may choose to amend their last payroll submission for 2020 to capture the additional income tax and USC due by the employee. Further details on this can be found on revenue.ie. Olive O’Donoghue is a Director of Tax in KPMG.

With many of us working remotely for now, it is imperative that Irish tax rules around the 'normal' place of work, as well as expenses, are re-evaluated. Colin Smith explains. The Department of Business Enterprise and Innovation (DBEI) recently published the results of its remote working consultation held in August. While submissions to the DBEI covered a wide range of topics, nearly 200 of the 520 submissions raised tax and financial remote work-related concerns. The CCAB-I was among the submissions to outline tax problems in the context of remote working. A special interdepartmental group has been set up to take over for the DBEI to work on the Programme for Government’s promise to develop a remote working strategy. Current measures As outlined by the Minister on Budget Day, there are tax measures in place, to some extent, to support remote workers: Employers can contribute up to €3.20 per day to cover the employee’s additional costs of working from home, such as electricity, heat and broadband, without triggering a charge to benefit-in-kind (BIK). Many employers cannot afford to make such a contribution in the current economic climate. In the UK, the Government provides tax relief of £1.20 per week to lower-rate taxpayers and £2.40 per week to higher-rate taxpayers, when workers are required to work from home due to COVID-19 restrictions. The UK measure is modest, but it’s easy to claim the relief and it recognises that workers are out of pocket due to the restrictions. A similar measure should be considered by the Irish Government. Employees not in receipt of a contribution from an employer can make a claim for tax relief directly from Revenue of 10% of the cost of electricity and heat as apportioned over the number of days worked at home over the year. Revenue recently announced that it will also allow a claim for 30% of the cost of broadband apportioned over the number of days worked at home over the year. An employee working from home cannot claim tax relief for the purchase of work-related equipment such as computers and office furniture. However, the employer can provide such equipment to the employee and a BIK charge will not arise so long as private use is minimal. Employees can make a claim for tax relief directly from Revenue for other vouched expenses incurred “wholly, exclusively and necessarily” in the performance of the duties of their employment. Revenue applies a strict interpretation on the meaning of wholly, exclusively, and necessarily based on case law: an employee can only claim a deduction where the expense is incurred entirely in the performance of their duties, the employee is required to incur the expense in the performance of their duties, and they could not have carried out their duties without incurring the expense. These are complex rules and the odds of making a successful claim are stacked against the employee in the context of working from home. Fairer and more accessible tax rules must be developed as part of an effective strategy for remote working. ‘Normal’ place of work As set out in the CCAB-I’s submission to DBEI, an employee’s normal place of work is central to the tax treatment of travel and subsistence reimbursements to employees. Revenue holds the position that an employee’s home does not qualify as a normal place of work other than in exceptional circumstances and this brings complexity to what should be a straightforward matter. Employees and employers have risen to the challenge of new work practices as necessitated by COVID-19, and Irish tax rules must now align with these practices by re-evaluating what is a ‘normal’ place of work for tax purposes and the rules for tax deductible expenses of employment. Colin Smith is a Tax Partner at PwC and member of CCAB-I Tax Committee South.

The government has recently announced details of a new support scheme for businesses, but it has limitations that need to be addressed. Paul Dillon outlines the role Chartered Accountants must play to raise awareness of these limitations. Details of the COVID Restrictions Support Scheme (CRSS), announced as part of Budget 2021, were recently published by Revenue and registration for the scheme has officially opened. By offering a support of up to €5,000 per week, the scheme will be very valuable to businesses impacted by Government health and safety restrictions. However, the biggest hurdle for businesses will be meeting the many terms and conditions necessary to qualify. To begin with, the guidance issued by Revenue is over 45 pages long. While detailed guidance is always helpful, the length of the guidance speaks volumes about the complexity of the scheme. Further, it piles more paperwork on businesses already struggling to stay on top of the demands of operating under lockdown conditions. These same businesses continue to grapple with paperwork for the Temporary Wage Subsidy Scheme (TWSS) by having to respond to compliance check letters and reconciliations for Revenue, which all 66,000 employers who benefited from the scheme must prepare. The CRSS is only available to businesses operating from premises that restricts customers from access due to COVID-19 restrictions. This means that the scheme benefits retailers, restaurants, pubs and entertainment venues, but it cannot be accessed by the many suppliers of these businesses, even though these suppliers are equally impacted by the negative effects of the Government’s COVID-19 restrictions. For example, wholesalers supplying to restaurants, pubs and hotels do not qualify for the CRSS under the current terms of the scheme. Sound engineers who supply their services to the live entertainment sector do not qualify for this subsidy, and all the businesses who provide services to theatres and shows are also excluded from CRSS. Mobile businesses not tied to a fixed premise are also precluded from accessing the scheme. This includes taxis and businesses operated from stalls, such as markets or trade fairs. It is puzzling why the Government has chosen to exclude these businesses from qualifying for the CRSS, especially given the fact that on Budget Day, Minister Donohoe said, “The scheme is designed to assist those businesses whose trade has been significantly impacted or temporarily closed as a result of the restrictions as set out in the Government’s ‘Living with Covid-19’ Plan.” This messaging gave hope to many businesses; however, those hopes were dashed when further details revealed the condition that only businesses operating from a fixed premises with restricted customer access could benefit from the scheme. As Government restrictions to control the spread of COVID-19 are likely to be a feature of life in Ireland in 2021, it is essential that proper supports are in place to help all businesses impacted by the restrictions, like the wholesalers and businesses supplying services to restaurants and hotels. The CRSS will be a lifeline to many businesses and its only fair that the scheme should apply to all businesses impacted. While Government has demonstrated a willingness to revise and refine supports, like the TWSS, it is only when the issues are brought into the public domain by informed commentary. That is why, as Chartered Accountants, we have a role to play in raising awareness of the limitations of the CRSS and lobbying for change. Paul Dillon is Deputy Chair of the Tax Committee South of the CCAB-I and Taxation Partner in Duignan Carthy O'Neill.