Tax

As the “year of elections” continues to unfold, Ireland faces a changing global tax environment, but with change comes the opportunity to position the country as a beacon of stability for continued FDI. Cillein Barry and Susan Buggle dig into the details As a small, open economy, Ireland is a competitive location for foreign direct investment (FDI). However, we are also subject to the impact of changes to tax regimes globally, most notably those driven by the Organisation for Economic Cooperation and Development (OECD), the European Union (EU) and the US. Changes to the tax regime in the US, in particular, have an indirect material impact on Ireland’s attractiveness as a location for FDI.  This year has been cited as “the year of elections”, with roughly half the world’s population going to the polls in 2024. The outcome of elections across the EU and, later this year, in the US may serve to shape future tax policy impacting Ireland.  Here at home, though the Irish Government has denied claims of an early election in 2024, an anticipated “giveaway” budget on 1 October means an early Irish election remains a distinct possibility. The US presidential election and tax policy While the outcome of the US presidential election cannot be predicted with any certainty at this time, we do have some insight into the tax policy objectives of both the Democrats and the Republicans should they come to power this year.  In considering possible changes to US tax policy, it is important to note that the approval of tax legislation generally requires 60 votes out of 100 in the US Senate.  This means that one party must hold a large majority or, alternatively, there must be bi-partisan co-operation to approve any proposed changes to tax policy. Neither of these scenarios seems likely in the aftermath of the upcoming presidential election.  While tax legislation may also be passed by a simple majority using a process known as “budget reconciliation”, the relevant tax measures cannot increase the long-term deficit of the US.  In an era of limited bi-partisan co-operation, significant US tax reform is therefore unlikely, as it would require either a super-majority in the Senate or the introduction of tax measures regarded as fiscally neutral over the long-term.  Understanding the Tax Cuts and Jobs Act In 2017, then US President Donald Trump’s Republican administration introduced some of the most significant reforms to the US tax code in three decades under the Tax Cuts and Jobs Act (TCJA).  The key measures for US businesses were broadly designed to lower the US corporate tax rate to one more comparable with competitors among OECD member countries and to protect the US tax base. These included: Corporate income tax rate: a reduction of the US corporate income tax rate from 28 to 21 percent. Global Intangible Low-Taxed Income (GILTI): a 10.5 percent tax on a portion of the income earned by foreign subsidiaries of US companies. Foreign-Derived Intangible Income (FDII): a preferential rate of 13.25 percent for income earned by US companies outside the US on certain intellectual property. Base Erosion and Anti-Abuse Tax (BEAT): a minimum 10 percent tax on base erosion payments made by US entities to related parties outside the US. The TCJA was introduced using the budget reconciliation process at a time when there was a Republican congressional majority combined with a Republican president – not a single Democrat voted in its favour.  Having already introduced such significant reform, what more could the Republican side seek to introduce in 2025? In answering this question, it is important to note that a large part of the TCJA measures were temporary, with 25 of the tax cuts introduced under the Act due to expire in 2025. This includes a slated increase in the rate of GILTI (10.5% to 13.125%), BEAT (10% to 12.5%) and FDII (13.125% to 16.406%). The Republicans are likely to face pressure from US businesses to reverse these planned increases and preserve the impact of the TCJA.  However, the Republicans are also likely to face pressure to extend several individual tax cuts included in the TCJA, which together impact more than half of US households. Indeed, both Democrats and Republicans are in favour of retaining at least some of these measures. The Democrats’ tax proposals The Democrats’ preferred tax policy was outlined in March 2024 in Joe Biden’s “Green Book” budget proposals. These proposals seek to reverse many of the TCJA tax cuts and include: Increasing the corporate tax rate from 21 to 28 percent; Increasing to the GILTI rate from 10.5 to 21 percent; and A repeal of the preferential rate for FDII. To introduce such tax proposals under a new leader, the Democrats would likely require a significant majority, as it would be challenging to introduce such measures while balancing the books to achieve a fiscally neutral outcome.  US Presidential elections: the likely outcome Many US commentators predict a split government in the aftermath of the US presidential elections, with neither party controlling the House and Senate.  Marrying this with the complex procedures required to pass tax legislation and the political pressure to preserve tax cuts for individuals, the most likely outcome for US business taxation is little change to the status quo regardless of who will be elected as the new US President.  Though Republican rhetoric has centred on cutting the federal corporate income tax rate to 15 percent, this should be viewed in a similar light, although the threat of 10 percent tariffs and the EU’s response will need to be monitored closely.  The other key area to watch is US engagement with the OECD’s Base Erosion and Profit Shifting (BEPS) 2.0 tax proposals. Under Pillar Two of BEPS 2.0, this year has seen the most significant change in international tax in recent memory, with many countries, including Ireland, introducing a minimum 15 percent tax on the corporate profits of large multinational groups.  Despite positive indications from the US Treasury, achieving sufficient political support to introduce the Pillar Two proposals in the US has proved elusive. However, the mechanics of these rules will mean that US-headquartered groups are likely to be affected by the global minimum tax rules from 2026 onwards.  If Pillar Two plans proceed as anticipated, it remains to be seen how the US will react and whether the party in power will seek to introduce retaliatory measures.  Republicans sitting on the powerful Ways and Means Committee have already outlined proposals to impose an additional five percent tax rate each year on the US income of entities located in foreign jurisdictions applying the Pillar Two rules.  The outlook in Europe We have witnessed significant political developments across Europe in recent weeks, including the election of a new European Parliament in June and domestic parliamentary elections taking place in several neighbouring European countries, most notably France and the UK.  In July, Hungary took over its Presidency of the Council of the European Union and Ursula von der Leyen was re-elected as the President of the European Commission. EU commissioners and working groups will be appointed in the coming weeks. These developments will play a key role in shaping the future direction of taxation policy in the EU.  Recent years have seen the introduction of a swathe of EU-wide tax initiatives, including measures aimed at tackling tax avoidance (e.g. the Anti-Tax Avoidance Directive), measures to increase transparency (e.g. the EU public Country-by-Country Reporting Directive) and measures to introduce OECD BEPS 2.0 Pillar Two provisions across the EU via the Minimum Tax Directive.  While Pillar Two has progressed, work on the OECD’s other key initiative to reallocate a portion of the profits of the largest multinational groups to jurisdictions in which customers are located (known as Pillar One) is at best delayed, but more likely dead.   With progress on Pillar One potentially stalling, a renewed focus may be placed on introducing alternative Digital Service Taxes (DSTs), either unilaterally or on an EU-wide basis. In this regard, the current moratorium on introducing DSTs at an EU level is due to expire on 31 December 2024. EU-wide tax measures EU institutions are continuing to work on a range of other tax measures, including Business in Europe: Framework for Income Taxation (BEFIT), a proposal for a consolidated EU tax base that would be allocated to Member States, and the proposed “Unshell Directive” aimed at tackling the potential misuse of entities without sufficient substance for tax purposes. It remains to be seen which tax initiatives will get priority treatment under the incoming Hungarian Presidency of the Council of the EU, with its stated slogan – “Make Europe Great Again” – focusing on European competitiveness as a key priority.  This is likely to signal shifting sands ahead for EU taxation policies, particularly in the context of Hungarian Prime Minister Victor Orban publicly calling BEPS 2.0 Pillar Two “a catastrophic failure,” serving to dampen competitiveness.  EU Member States have also advised the European Commission to slow the pace of development of direct tax proposals, given the significant volume of measures introduced in recent years. Therefore, a more benign approach to tax policy is expected at an EU level for the foreseeable future. Shifting taxation policy: the Irish impact  In an environment of increasing uncertainty, it is worth bearing in mind Ireland’s unique position as an economic gateway for both Europe and the US.  While US investment in Ireland is well-publicised with more than 950 US companies located here, Ireland now also ranks as the ninth largest foreign direct investor in the US, employing about 100,000 people in the States.  Ireland is also the only English-speaking common law trade and investment gateway to the EU. Ireland’s competitive corporate tax rate and transparent and stable tax policies have been a crucial factor in attracting FDI. This tax policy has consistent cross-party support.  Other key factors include our highly educated and skilled pool of graduates, particularly in science, technology, engineering and mathematics (STEM), our clear and consistent regulatory environment in key areas such as data protection, and Ireland’s attractiveness as a place to live and work. Ireland must, however, guard against complacency. In a constantly evolving environment, it is essential that we focus on ensuring that Ireland remains a competitive and attractive location for FDI. This includes reducing the cost of doing business and facilitating access to talent.  On a global basis, tax competition remains alive and well and a new wave of incentives and subsidies is being introduced by competing jurisdictions.  Our regimes for attracting high-value jobs and businesses – particularly our research and development (R&D) tax credit, reliefs for intellectual property and international assignees – continue to be key pillars in this space.  With ongoing uncertainty within the EU and across the Atlantic, we now have an opportunity to position Ireland as a beacon of stability and a safe harbour jurisdiction for foreign direct investment. This opportunity must be grasped.    Cillein Barry is Tax Partner with KPMG  Susan Buggle is Tax Principal with KPMG

Business owners must consider the tax implications of key business decisions to avoid pitfalls and realise the full benefits, advises Kerri O’Connell  For many successful business owners, tax planning and wealth management will be inextricably linked, requiring a careful approach to future considerations at a relatively early stage in the development of their business. According to Kerri O’Connell, Tax Adviser and Principal at Obvio Tax Services, not all owners are aware of the tax implications of the decisions they make as they build their business, however. “The time for considering these issues is before significant value has built up in the business as problems can arise when there has been no consideration of the potential sale of some or all of the business, or the investment assets, or for the future reliance on tax reliefs on business transfer,” says O’Connell. A Registered Trust and Estate Practitioner with the Society of Trust and Estate Practitioners Ireland, O’Connell has been advising SMEs in Ireland for over 25 years as both a Chartered Accountant and Chartered Tax Advisor. She founded Obvio Tax Services in 2015 to advise business owners on tax matters at each phase of the business cycle from start-up through to expansion and sale or succession. “What I’ve learned is that, for many owners, their focus understandably will be on getting their business onto a sound footing and then building it from there,” she says. “When their business becomes valuable, however, problems can arise if they fail to focus on their personal finances. This issue can be particularly acute when the business is incorporated, the owner has no pension scheme or some of the business surpluses have been used for investments.”  It is crucial, therefore, that business owners consider their exit plans at a relatively early stage in the development of their business and avail of good tax advice. “It is very important to get tax advice specific to your business when it is growing and making profits,” O’Connell says. Access to retirement relief on Capital Gains Tax (CGT) could potentially exempt the transfer from CGT. Alternatively, CGT entrepreneur relief may apply: “this relief applies a 10 percent CGT rate on the first €1 million of gains with the usual 33 percent CGT rate applicable to any surpluses,” O’Connell explains. Several conditions must be met in order for these CGT reliefs to apply, requiring advance planning.  “In a family succession situation, the beneficiaries, be they children or grandchildren, will look to rely on Capital Acquisitions Tax (CAT) business property relief or CAT agricultural relief,” O’Connell says. “Again, many conditions must be met, but if either of these reliefs are available, they can potentially reduce the taxable value by 90 percent and so potentially reduce the effective CAT rate to 3.3 percent.” Other exit options open to owners include selling their business, or passing ownership on to senior leaders in the business through an internal takeover. “If you are selling your business, pre-sale restructuring may be required to separate different trades, or to separate business and investment assets. This restructuring will attract tax liabilities unless various restricting reliefs can be relied upon,” O’Connell says.  If your exit involves an internal takeover, meanwhile, pre-sale restructuring may be required to isolate the sale asset.  “You may also need to consider the potential impact of some anti-avoidance legislation, which can operate to turn a capital event – subject to CGT and potentially attracting CGT reliefs – into an income distribution, taxable to full income taxes, USC and PRSI,” O’Connell says. Business structure As businesses grow and expand into new markets, it is also important to consider tax implications from the point-of-view of business structure, O’Connell advises. “Once the decision has been made to develop a new income stream or enter a new market, it is important to stop and think first about the right business structure going forward,” she says. “Don’t put off thinking about structure until a year or two of trading to ‘see how it goes’ – you’re potentially storing up tax problems. “If you have identified new income streams with different plans for each stream, a group structure may be appropriate in terms of the retention of different businesses, their future sale or the introduction of key employees as shareholders.” Tax issues arising from the creation of a group structure can be managed if conditions are met for the relevant tax reliefs to apply, O’Connell says.  “You will also need to think about business structure if you are expanding into overseas markets and deciding whether to set up a separate company or overseas branch in a new country. Tax advice in that country will be required either way and you will also need to consider the tax implications of profit repatriation. “Do bear in mind that, if you have sales staff operating in another country, this will likely create payroll tax issues in that country as well as potential exposure to corporation tax.” As growth ramps up and business owners look to the next stage of their company’s development, it is a good idea to consider the tax-based financing options open to them – for example, the Employment Investment Incentive Scheme (EIIS) or repayable tax credits for research and development (R&D) activities. Employment Investment Incentive Scheme “Changes introduced in Finance Act 2019 resulted in the entire EIIS becoming self-assessed so there is no longer a requirement to secure advance approval from Revenue,” O’Connell says. “In my view, this was a positive step as the timeframes for securing approval had become unworkable. Recent Finance Act 2023 changes will potentially continue this positive momentum, with the maximum investment on which an individual can claim income tax relief now increased to €500,000.” A tiered system of relief has also been introduced depending on a company’s stage of development, as follows: 50 percent income tax relief for entirely new businesses; 35 percent tax relief for businesses operating for less than seven years; 20 percent tax relief for expansion/follow-on investment in businesses in operation for more than seven years.  “EIIS investors are used to the previous 40 percent rate of tax relief. In order to achieve more than a 35 percent rate now, they must invest in entirely new businesses,” O’Connell says. “It remains to be seen if there will be increased EIIS funding available for younger riskier businesses and if this will change when an EIIS scheme might fit into the financing mix for a young business.” R&D repayable tax credits  Changes to the R&D tax credit regime, introduced in recent years, mean that this credit may be wholly repayable to the recipient, making it a de facto source of finance for companies. “Finance Act 2023 changes introduce an uplift in the rate of R&D tax credit from 25 percent to 30 percent,” O’Connell explains.  “For SMEs with claims of up to €100,000, the repayments continue to be made across three instalments, but more of the repayment can now be frontloaded with up to €50,000 repayable in the first instalment.” Tax incentives: recent developments Finance Act 2023 introduced changes to retirement relief on Capital Gains Tax (CGT), effective from 1 January 2025, writes Kerri O’Connell The relief available on a transfer to anyone other than a child was previously subject to a cap of €750,000 total proceeds from qualifying assets, as long as the transfer took place after the owner turned 55 years of age and before they turned 66.  This later age restriction has been pushed out to 70. Any transfer made once the owner has turned 70 will be subject to a €500,000 cap.  For higher value businesses, the changes are negative as they introduce a maximum cap on retirement relief of €10 million total value of qualifying assets on any transfer to a child where the business owner is aged between 55 and 69. This cap is reduced to €3 million from age 70 onwards.  Previously, a claim for retirement relief on a transfer to a child before the age of 66 was unlimited as to the value of the qualifying assets transferred.  The reason for introducing different tax treatment depending on the age of the owner is to encourage the earlier transfer of businesses, but this policy aim may yet be defeated by the introduction of the new €10 million value cap.  Business lobby groups have come out firmly against the changes and understandably so, as the gift of a business to the next generation may now trigger significant tax charges, without any cash proceeds available to cover this.  While the 2022 Commission on Taxation and Welfare recommended such a cap, it did not set a proposed figure, and many would view the €10 million value as too low.  The Commission did, however, note that it should be ensured that the payment of tax on these gifts ‘does not undermine the viability of the enterprise’ and suggested the introduction of deferral arrangements or long payment schedules with low/no interest. These recommendations have not, to date, been taken up.  Another recommendation from the Commission is also worth highlighting. Typically, taxpayers will look to rely on CAT agricultural relief or CAT business property relief when receiving a gift of a farm or business.  The Commission recommended that these 90 percent reliefs be reduced and that the conditions attaching amended to ensure that the beneficiary actively participates in the farm/business they have been gifted. At the time of writing, however, this recommendation has not been taken up by the Department of Finance.

The Pre-Budget Submission 2024 tackles challenges in Ireland, from the ‘green’ transition to inflation and housing supply, offering recommendations to benefit businesses, says Gearóid O’Sullivan Each year, Pre-Budget Submission is prepared under the auspices of the Consultative Committee of Accountancy Bodies – Ireland (CCAB-I).  It is a particularly influential document as it represents not only the views of Chartered Accountants but also our peers in other professional accountancy organisations. The Pre-Budget Submission is overseen by the CCAB-I’s Tax Committee South, of which the membership is predominantly Chartered Accountants. Pre-Budget Submission 2024 This year’s Pre-Budget Submission addresses several key issues impacting business in Ireland, from the so-called ‘green’ transition to the impact of inflationary pressures and, of course, ongoing supply issues on all sides of the residential property market.  The aim of any tax measure is ultimately to support the economy and wider society. Therefore, to the extent a measure represents an initial cost to the Exchequer, the hope and intention is that there is a corresponding benefit that exceeds the cost.  In some instances, the benefit is purely financial, e.g. our recommendation to permanently legislate for the Special Assignee Relief Program (SARP) and, in others, the benefit is a desired change in behaviour, e.g. our recommendation to introduce a ‘Help-to-Insulate’ scheme. Measures to alleviate capacity issues in the residential property market The residential property market faces issues on both the rental and retail sides.  On the rental side, we continue to advocate for measures to make renting more attractive, particularly for small-scale and accidental landlords.  Despite tax legislation recognising taxable profits in many cases, often small-scale and accidental landlords find themselves in a cash-flow negative position when the tax bill and any loans on the property are taken into account.  While it is reasonable to mention the economic benefit achieved through property ownership over the longer term, the cash-flow impact is often driving these small-scale and accidental landlords out of the rental market.  If this cohort of landlords were, in turn, selling their investment properties, there could be a sound basis from a policy perspective in maintaining the rules in their current iteration.  However, landlords will often have to first seek to evict and then sell. As such, vacancy represents a key policy issue for government when designing appropriate taxation rules for landlords. With the above in mind, CCAB-I has made several recommendations that we suggest will make letting sufficiently attractive for smaller-scale and accidental landlords: Local property tax should be available as a deduction against rental income. Expenses deductible under section 97 TCA 1997 should be aligned with Case I/II principles. Expenses that are revenue in nature and incurred wholly and exclusively for the purpose of the rental business should be deductible, and rental losses should be available for offset against other income. Capital allowance rates for fixtures and fittings should be increased from 12.5 percent to 25 percent per annum to facilitate landlords investing in the maintenance of properties, providing the works do not result in the termination of an existing tenancy. Landlords who retrofit a property to enhance the property’s energy rating should be able to claim a 100 percent capital allowance where the renovations do not result in the termination of an existing tenancy. The Government should introduce measures to bring parity to the taxation of corporate and individual professional landlords by introducing a flat rate of 25 percent on Case V income for small landlords who opted to become ‘professional landlords’ by waiving their rights under Section 34 of the Residential Tenancy Act (2014), giving additional security to their tenants. We have also suggested a reasonable capital gains tax (CGT) relief to incentivise property sales with tenants in-situ: Professional landlords should be given access to succession reliefs (e.g. CGT retirement relief) to improve the long-term investment proposition of the residential rental business. To encourage landlords to remain in the private rental market, CGT relief of four percent per annum should accrue for the length of time the asset remains a rental property. (This was specifically examined in a 2017 Report of the Working Group on the Tax and Fiscal Treatment of Rental Accommodation Providers.) In addition to the above, we are also recommending that Government increases ‘Rent-a-Room’ relief to match standardised average rents and to remove the ‘cliff-edge’ over which relief is completely removed. Measures to combat inflationary pressures The level of inflation in the Irish economy is putting significant pressure on households.  The European Central Bank began increasing interest rates in a bid to dampen inflation. There is a balance to be struck between tax measures to combat inflation and the policy aim of reducing spending capacity. With that said, there is scope for a reasonable change in the personal tax regime, which should not be incongruent with the policy objectives of the European Central Bank.  Earlier this year, CCAB-I responded to the Department of Finance’s consultation on Ireland’s personal tax system. The Pre-Budget Submission includes many of the points raised in that earlier submission, including a recommendation to move to indexation of the income tax bands and credits.  In Ireland, a taxpayer begins to pay tax at the higher rate from €40,000, although the average industrial wage is €46,800. Therefore, the application of an indexed approach to increasing bands and credits should ensure that tax bands and credits remain valuable year to year. Otherwise, while the Government may not raise bands and credits in a particular year, the real value of after-tax wage is likely to have decreased due to the impact of inflation. We also recommend changes to other areas of the personal tax system, including several changes to the CGT and capital acquisition tax (CAT) regimes. These include: The CGT annual exempt amount available under section 601 TCA 1997 should be increased to €5,000.  The CGT indexation tables in section 556 TCA 1997 should be extended beyond 2003 to the present day. The rates of CGT and CAT should be reduced to 20 percent. The lifetime limit for claiming revised entrepreneur relief under section 597AA TCA 1997 should be increased to €5 million. The category A threshold for CAT should be increased to €350,000 in line with a rate reduction. The CAT small gift exemption should be increased to €5,000. Employers’ PRSI should not be increased at this time. As in 2022, we are also recommending that further consideration is given to an intermediate rate of income tax. This is a longer-term ambition.  However, the current system is complicated by the fact that we have three separate taxes on personal income (income tax, USC and PRSI). As such, all these taxes could be redesigned into a single tax, and in this scenario, an intermediate rate of tax becomes a key tool. Further recommendations Pre-Budget Submission includes further recommendations on measures to assist climate change, support foreign direct investment, SMEs and entrepreneurs, and enhance the tax system generally.  The document is a key feature of the tax department’s annual output. It reflects the views of professional accountants across the country and is presented directly to the Department of Finance each year.  While the Government faces several challenges in this year’s Budget as it balances a substantial surplus with increasing societal needs, it is hoped that our recommendations will be considered in terms of the benefit we believe they will bring to businesses in Ireland. Gearóid O’Sullivan is a Tax Manager at Chartered Accountants Ireland 

Irish Government finances are in surplus and Ireland’s debt-to-GDP ratio has stabilised, so why are there calls for higher taxes? asks Dr Brian Keegan It’s hard to avoid concern fatigue setting in. What with the war in Ukraine, the cost-of-living crisis, the continued Northern political stalemate, multiple dire warnings amplified at COP27 over climate change and another possible COVID-19 surge—the list of concerns seems particularly endless at the moment.   Some time ago, the commentator Marc Coleman projected that population growth—and, by implication, skills growth—would drive prosperity in Ireland. Coleman’s ideas have been given additional credence by the current situation in the UK. Chancellor Jeremy Hunt’s November budget looks towards an extended period of economic stagnation. British productivity has not grown in line with government spending in recent years. In the moribund British economy, there is a record low level of people out of work while the number of job vacancies is at a record high.   There is a straightforward, one-to-one relationship between economic growth and the growth in tax yield, which permits more government spending without further borrowing. When the growth in gross domestic product (GDP) stalls, so too do the tax figures.   In his book The Best is Yet to Come, Coleman pointed out some of the links between more workers, growth and greater resources for public services and benefits. Though the timing was unfortunate (the book was published just months before the 2008 financial crisis), Ireland is now indeed in a better place, at least economically, than it has been for many years. Government finances are in surplus and the debt-to-GDP ratio, at around 50 percent, is back under control.   Unlike the British situation where a Budget bordering on the austere was required to meet existing public spending commitments, without an intolerably high borrowing requirement, the recent Irish Budget took a cost-of-living crisis in its stride, with grant aid against soaring energy bills for households and businesses alike being met through current tax receipts. Nevertheless, a narrative has emerged that the burden of taxation in Ireland will have to increase.   Why this should be the case is not always specified. There are unquestionably problems with housing, health, and education, but it does not automatically follow that these problems arise from underinvestment. At the time of writing, close to half a billion euros set aside in 2022 for local authority housing remains unspent. This points to management or capacity problems, not funding challenges.   The much-heralded report of the Commission on Taxation and Welfare has not had a huge impact on the political debate. This may be because it presents solutions in search of a problem. As research from the Irish Fiscal Advisory Council has pointed out, “its work was not framed around any specific shortfall in funding that needed to be filled. Instead, it was guided by a broad intention to generate additional revenue”.   Even government politicians, who are rarely scathing about the output of an expert group, which the government itself commissioned, were dismissive of the recommendations. Clearly, there are some areas of the economy where additional tax funding will be required, if not immediately, in the medium-term.   Unless there is an unforeseen level of immigration of people of working age, the ratio of workers to pensioners is going in the wrong direction. Climate change management, ironically being driven more by energy security concerns than global altruism, will come with a price tag. The sustained high corporation tax take may have peaked. In Britain, the urgent need for higher taxation has been unanswerable. In Ireland, there needs to be a clear business case for any form of new or additional taxation. We have enough to be concerned about without the prospect of unnecessary taxes. Dr Brian Keegan is Director of Advocacy and Voice at Chartered Accountants Ireland

Jane O’Hanlon explains the common tax-related issues facing members in business and how to deal with them before Revenue comes knocking. As a tax advisor working in a specialised tax practice, I encounter similar tax issues in various businesses. This article will focus on the most critical issues and help ensure that your business is tax compliant. What should I do when Revenue knocks on my door? The answer to this depends on the nature of the knock! Any correspondence issued by Revenue must be looked at carefully to understand the purpose of the query. A letter might issue from Revenue with queries due to an incorrect entry on a tax return (referred to as an ‘Aspect Query’ letter). Where a business files a VAT return and is in a VAT recovery position, standard VAT verification letters are often issued by Revenue seeking documentation to support the VAT refund due. This type of correspondence is routine and while it should be dealt with promptly, it should not result in undue concern. If an error is discovered as you prepare your response, it is usually possible to make a ‘qualifying disclosure’ to Revenue. By making a qualifying disclosure, you can reduce the penalties payable, avoid prosecution, and avoid publication in the list of tax defaulters. A disclosure is unprompted if it is made before notification of a Revenue audit is received. Any disclosures in relation to items covered by the audit made after the audit notice is received is prompted, and the penalty reductions for unprompted disclosures are higher than for prompted disclosures. However, Revenue recently indicated that it intends to move disclosures made by a business under an ‘Aspect Query’ to the ‘Prompted Disclosure’ category. Although publication can still be avoided, higher rates will be applicable if penalties apply. When a Revenue audit letter issues, depending on the tax head and the period covered, the taxpayer should conduct a full review of all tax matters. Common problems include businesses making cash payments to casual staff without PAYE, incorrect claiming of VAT input credits, incorrect operation of benefit-in-kind (BIK), and incorrectly claiming a tax deduction for income or corporation tax purposes. When that audit letter is received, it is essential to at once consider whether the business will need to make a prompted qualifying disclosure. If it does, it can write to the Revenue auditor requesting time to prepare the disclosure. In my experience, the time spent at this stage is well worth it as it often results in the audit running more smoothly and concluding promptly. It is not in the interest of any business to have an audit process continue any longer than it needs to. Therefore, it is crucial to ensure that a full disclosure, if needed, is made and that all supporting documentation is gathered and available to the auditor. Cooperation is the best policy. * Review your tax compliance position on VAT and PAYE. Cooperation is the best policy when dealing with Revenue and, if necessary, make a voluntary disclosure. What VAT can I recover? At a high level, VAT can only be recovered by a business providing VATable products or services. This means that the business charges VAT on sales to customers. You may think that a business providing only products or services subject to VAT can recover all VAT charged by its suppliers. However, that is not the case. It is never possible to recover VAT on the purchase of food and drink items for use in an office kitchen. I frequently encounter cases where VAT is being reclaimed on bottled water purchased by the business, for example. Similarly, if a business owner purchases items for personal use, VAT should not be recovered as that purchase has not been made to provide taxable (i.e. VATable) supplies. Furthermore, if a company carries on a trade and owns several rental properties, you must determine if the expense relates to the trade or the rental properties. For example, if repairs are carried out on the business premises and all supplies by the business are liable to VAT, the VAT charged can be recovered. However, if repairs are carried out on a rented residential apartment owned by the business, the VAT cannot be recovered as the rental income from the residential apartment is not liable to VAT. In summary, consideration must be given to each invoice to determine if the business can recover the VAT charged. In addition, businesses can recover 20% of the VAT incurred on the acquisition or leasing of a car, provided it is used for business purposes at least 60% of the time. Businesses must also be aware that, in most cases, the supplier will not have charged VAT when the business purchases goods or services from outside Ireland. The business must self-account for Irish VAT at the appropriate rate and claim an input credit if it is entitled to do so. If foreign VAT has been charged, the business should satisfy itself that this is correct before payment is made to the supplier. A business cannot include an input credit in an Irish VAT return for foreign VAT charged. A business can only include a claim for a VAT input credit where a valid VAT invoice has been received. Accounts payable staff should be trained to ensure that all invoices are valid VAT invoices before settling them. It is easier to seek a proper invoice from a supplier when the invoice has not yet been paid. * Check that you are correctly claiming VAT input credit on cars and foreign purchases. How long do I need to keep documentation for? In general, documents must be kept for six years after the tax year in question. However, that is not as straightforward as it may sound. For example, I know of one situation where an individual claimed capital allowances on a building, with the capital allowances available over seven years. The tax return covering the sixth year in which the allowances were available was selected for verification three years after the return was filed, and Revenue sought copies of documentation to confirm the nature and the availability of the allowances. In this case, the taxpayer needed to provide documentation from nine years earlier. The key point from a tax perspective is that the burden of proof rests with the taxpayer. Therefore, you need to ensure that you can prove your entitlement to a deduction for any expenses or any capital allowance claimed in your tax return. Many recent tax appeals decisions have referred to this point. An Appeals Commissioner cannot decide a case in favour of a taxpayer where the taxpayer cannot discharge the burden of proof. Regarding an asset that is a capital asset, it will be necessary to keep documentation for six years after the property is disposed of. If a property was bought in 2000 and sold in 2021, for example, documentation regarding the purchase of that asset must be retained until 2027. Doing so enables you to prove your entitlement to a deduction for the costs of acquisition incurred in 2000 in determining the capital gains tax payable (or indeed the capital loss) on the disposal of the asset. The retention of documentation is also important in the context of VAT and the Capital Goods Scheme. When an asset is disposed of, the vendor is often obliged to complete Pre-Contract VAT Enquiries (PCVE) as part of the sales process. The PCVE contain full details of the purchase/development of the property, how it has been used since it was acquired, and how it is currently being used. To determine the correct VAT treatment of the sale, there can be no gaps in terms of how the property has been used. It is easier to maintain this information on a contemporaneous basis rather than pulling together information on all prior years as you prepare to sell the property. * Review your document retention policy as in some cases, you may need to keep certain records for more than six years. How do I ensure compliance with BIK rules on the provision of company cars? Employers who provide employees with company cars are obliged to keep contemporaneous records of business mileage. BIK operates by applying a percentage rate to the original market value of the car provided to the employee (other than electric cars, where different rules apply). The applicable percentage depends on the annual business mileage driven by the employee and ranges from 30% down to 6%. If any rate other than 30% is used, the employer must be able to prove the business mileage. Where an employee is provided with a car, they must complete a monthly log of the business journeys for their employers. While the tax is payable by the employee, the obligation is on the employer to operate the tax correctly. In addition, if the vehicle provided is a commercial vehicle or a van, the appropriate BIK rate is 5% regardless of the business mileage. * Review how you are calculating PAYE on the BIK on company cars and keep appropriate contemporaneous records of staff business mileage. What information does my tax advisor need to prepare my tax return? Where your accountant prepares your business’s financial statements, they will generally have sufficient information to prepare an accurate tax return. Where the financial statements are prepared by the business and provided to the tax advisor, however, they will generally need answers to the following questions: Are all expenses incurred wholly and exclusively for the purpose of the trade? For example, consider business entertainment, charitable and political donations, personal expenditure, and expenses paid for by the business that may not relate to that business. Was the employer’s pension contribution paid during the year, or is there an accrual in the profit and loss account? A tax deduction is only available on a paid basis. Can you provide an analysis of professional and legal fees? Fees that relate to capital transactions (e.g. asset purchases/sales) are not deductible in calculating trading profits. Can you provide a schedule of fixed asset additions to include the date of acquisition, the cost of acquisition, and the nature of the asset? Also, can you provide a schedule of fixed asset disposals so that accurate capital allowances claims and balancing charges/allowances can be prepared? Can you provide a reconciliation of any finance lease creditors from the opening position to the closing position? Can you provide a schedule of directors’ remuneration split by director? Can you provide details of any dividends or distributions paid during the year? Can you provide details of any non-trading income? Where medical insurance is paid on behalf of the staff, can you provide details of the tax relief at source (TRS) amount and confirm whether the gross or net amount has been included in the profit and loss account? * Save time and fees by completing the checklist your tax advisor will need to prepare your tax return. These issues occur in a wide range of businesses. You should aim to ensure that your business is compliant with tax legislation on an ongoing basis. Careful consideration should be given to amending any errors you discover – before you get that knock on the door. Jane O’Hanlon is a Director at Purcell McQuillan and a Fellow of Chartered Accountants Ireland.

In response to requests from charities and their lead bodies, Benefacts produced a special report on Irish charities last May. Patricia Quinn explains the findings. In Ireland’s charity sector, just as across the rest of the economy, the COVID-19 pandemic cast a long shadow. A sector of predominantly small and micro entities, charities experienced the full gamut of disruption to their not-for-profit businesses in 2020, ranging from temporary closure to rapid adaptation to digital working and developing new solutions to meet the needs of vulnerable people in local communities. For some – especially providers of hospital, hospice, residential care, and homelessness charities – the impact for their staff and served communities was a matter of life and death. Other charities – especially in emergency relief, mental health, local development, and social care – experienced increased demand for their services. In some sectors such as the arts, heritage, and museums, charities without the capacity to move to digital working methods could not operate, or only to a minimal degree. They report staff cutbacks and other cost-saving measures, but most have limited reserves and cannot avoid fixed costs. Fundraised income, which is a significant proportion of the revenues of some Irish charities, was expected to take a severe hit. In some sectors that rely predominantly on traditional fundraising, including door-to-door or church gate collections, charity shops, fun runs and other event-based approaches, this has been the case. Where charities were already geared up to appeal to donors and collect gifts digitally, or transitioned successfully to online giving, some reported an increase in income from this source. What do we know about charities? Charities form a subset of all non-profits in Ireland, which number more than 32,000 if you drill down to the level of local clubs, societies, and associations. The 11,405 charities on the Register of Charities today include just under 3,600 primary and secondary schools. For practical purposes, they are regulated elsewhere. The Register also includes about 2,700 unincorporated associations, trusts, and non-incorporated bodies that file accounts to the Charities Regulator which – for various reasons – are not published on the Regulator’s website. Anybody wanting to study the financial and governance profile of the charity sector therefore relies mainly on the CRO (Companies Registration Office) filings of incorporated charities, of which there are about 5,000. These form the basis for a new benchmark report on the charity sector in Ireland released by Benefacts last month. Benchmarking the state of the sector There has never been a time when current, reliable data was more relevant to charities. In boardrooms around the country, trustee directors have been grappling with tough choices. Even the best risk register was unlikely to include a worldwide pandemic involving the near-total shut-down of whole sectors of the economy. And most charities are particularly ill-equipped to cope with financial adversity; by definition, they have no equity, no investors, and limited capacity to trade their way out of financial trouble. Few charities entered 2020 with significant financial reserves. Although the aggregate reported value of reserves in the sectors under review in the Benefacts report was €3.73 billion based on available data for 3,628 incorporated charities, most of these reserves (€2.5 billion) are held by just 80 larger charities – in particular, voluntary hospitals and social housing providers. The remaining €1.2 billion in reserves is distributed across smaller charities, primarily in local development, social housing, health, and services for people with a disability. Moreover, charities’ assets – unlike most commercial organisations – typically cannot readily be liquidated as they are essential for delivering services or may be of a heritage or highly specialised nature. When reserves are converted to the number of weeks of average weekly expenditure (using data from full accounts), our analysis found that more than one-third of charities have fewer than ten weeks’ reserves, with arts charities particularly heavily exposed. Not all bleak In preparing its report, Benefacts reviewed more than a dozen surveys and other reports prepared by sector lead bodies, policy-makers, and regulators. Many positive effects have been reported. These include heightened public awareness of the value of charities’ work, better engagement across geographic divides, cost and time savings, a better quality of life for staff, and the adoption of more diversified fundraising solutions – especially digital ones. In fact, it appears that a small percentage of charities that were already well-geared for digital fundraising will be reporting 2020 as a better year than usual. Philanthropists stepped up in response, especially to pandemic-related causes, and social enterprises were encouraged to bid for new additional funding. The State permitted some charity employees to avail of pandemic unemployment benefits and allocated additional funding to address areas of acute need. Using financial reporting data shared with us in advance of the publication of their own financial statements by the nine State bodies that are the principal funders of charities, we were able to identify a 10.7% year-on-year uplift in funding for charities – mainly in health, social care, arts, and culture. But in 2020, there were nearly ten pandemic-free weeks at the start of the year and lockdowns were partially lifted mid-year. Additional State support will undoubtedly have sustained some charities that might otherwise have gone under. But there’s already a recognition that 2021 – with the exit from full lockdowns only starting in the middle of the second quarter – will be a tougher year, and 2022 probably tougher again. Planning for better The last 30 years have seen considerable professionalisation in the charity sector. The 5,000 charities whose financial statements form the basis for this new report employ more than 101,000 people. Fundraising, a critical discipline in the 273 charities that rely on this as their principal source of income, has become highly specialised. The larger charities now have professional staff to manage their volunteer supporters. Even the voluntary directors of charities themselves are increasingly recruited using the kind of competency framework approach that would have been unheard of in this sector 20 years ago. And perhaps it’s as well, since understanding the drivers of charity business success is a crucial function of charity boards. Contingency planning will surely come to the fore, as well as a searching review of some of the fundamental assumptions about funding. Benefacts has already received queries from charities trying to understand their position relative to their peer organisations in a given sub-sector, anticipating perhaps an even more competitive environment in the future. Audited financial statements are a hugely valuable source of granular data that makes up the picture of any sector and its component entities. Like analysts in commercial sectors, Benefacts relies on charity company disclosures as the bedrock on which we build a profile of the charity sector and its sub-sectors. Common financial reporting standards bring consistency and reliability to the data that can be used to create a picture of the whole sector and track changes year-on-year at the level of individual charities and sectors such as hospice care, addiction support, or animal welfare. Thanks to its database, augmented each year with more than three million new data items harvested from non-profit company disclosures, Benefacts has been able to provide charities, funders, policy-makers and other stakeholders with a powerful knowledge asset to help them navigate uncertain times. The impact of regulation The range of data underpinning our analysis of this multi-billion euro sector suffered a setback with the new Companies Act reform in 2014. For the first time, small non-profit (limited by guarantee) companies could avail of the same exemptions from filing full accounts as commercial companies. While this is only fair and equitable on the face of it, it has diminished the public disclosures of thousands of charities that rely on public donations, state funding, or both to support their operations. Unfortunately, the Charities Act 2009 did not foresee this change and exempts charity companies from filing their accounts to the Charities Regulator to avoid the burden of double regulation. Again, fair and equitable – except for the unintended side effect of making the financial disclosures of thousands of charities less transparent to the very people on whom they rely for income and something more precious – trust. Here are the numbers: of the 3,628 charities that have already filed their 2019 accounts, 36% have filed abridged accounts and 26% have filed unaudited accounts. 106 of these charities receive funding from the State. This means that their unaudited accounts breach the reporting standards for any body receiving State funding set by the Department of Public Expenditure & Reform (Circular 13, 2014). Rules are there to be obeyed, and over time, the compliance authorities will surely iron out these wrinkles in the provisions of the various legal and regulatory frameworks. But charities are not like other small businesses. The principle rather than the letter of the legislation regulating them is one of transparency. To that, I would add informed self-interest. Sector lead bodies preparing a brief for their board or a presentation for an Oireachtas Committee hearing are often disappointed to discover that Benefacts analysis of their members is missing some critical dimension – especially an analysis of their income. That is because so many of the source documents lack an important few pages: the income and expenditure account. This is all the more galling as funders require the full accounts to be provided to them. We therefore experience a double standard – full accounts to go in the State filing cabinet, abridged ones for the rest of us.