644 Provisions supplementary to section 643

(1)(a) A gain under section 643 would normally be chargeable on the person by whom the gain is realised. If, however, the opportunity of realising the gain has been provided by some other person, for example, if a settlor provides an opportunity for the trustees to realise a gain, that other person is chargeable even though that person does not actually receive the consideration.

A person who, under section 643, is assessed in respect of consideration receivable by another person is entitled to recover the tax from that other person.

If the tax, or any part of it, remains unpaid after 6 months from the due date, it is recoverable by the Revenue from the other person (who was not assessed) as though that person had himself/herself been assessed. However, this does not prejudice the right of the Revenue to recover the tax from the person who was assessed.

The inspector, if requested, is obliged to furnish a certificate to the person seeking to recover tax paid under section 643 from another person specifying the amount of income in respect of which tax has been paid and the amount of tax so paid. This is to assist the person seeking recoupment of tax paid by that person in respect of another person’s gain. Such a certificate is evidence, until the contrary is proved, of any facts stated in the certificate.

(1)(b) Any amount which by virtue of section 643 is to be treated as the income of a person is to be treated as the highest taxed part of the person’s income. This is to apply despite any other provision of the Tax Acts to the contrary.

(2) The Revenue Commissioners are empowered to take certain steps when it appears to them that any person entitled to any consideration or other amount taxable under section 643 is not resident in the State. In such circumstances, they may direct that section 238 is to apply to any payment forming part of the amount taxable under section 643 as if it were an annual payment charged with tax under Schedule D. Thus, where a payment is made in such circumstances to a non-resident person, income tax must be deducted at the standard rate by the payer and accounted for to the Revenue. This will not, however, prejudice the final determination of the liability of the non-resident person, including any liability under the provisions of subsection (1)(a)(ii).

(3) The provisions of section 643 are made subject to any provision of the Tax Acts which deems income of one person to be the income of another person – for example, the provisions of the settlements legislation in Part 31 which deems income of certain beneficiaries of settlements to be income of the settlors.

(4) Where, for the purposes of computing a gain chargeable under section 643, land is treated under subsection (10) of that subsection as having been appropriated as trading stock, the land must also be treated as having been appropriated as trading stock for the purposes of section 596, which deals with the capital gains tax treatment of appropriations to and from stock in trade. For capital gains tax purposes, therefore, the land is treated as having been sold at its market value on the date on which it is treated as having been appropriated as trading stock (also at market value) for the purposes of section 643 and, where appropriate, a capital gains tax liability may arise in respect of the part of the gain on that land which is not to be taxed under section 643.

(5) Where one person realises a gain and another person is charged to tax under section 643 on that gain, and that tax is paid, the person by whom the gain was realised is to be regarded as having been charged to that tax. This ensures that the person who made the disposal and realised the gain is not to be charged to capital gains tax on that gain.

Relevant Date: Finance Act 2021