817I Pre-disclosure enquiry

Summary

This section allows the Revenue Commissioners to make a “pre-disclosure enquiry” of certain persons, by way of a written notice, where they have reasonable grounds for believing that the person is the promoter of a transaction that may be a disclosable transaction or is the user of, for example, an in-house scheme that may be a disclosable transaction. If the person is of the view that the transaction is not a disclosable transaction the person is required to provide reasons for that opinion and must demonstrate, based on the requirements of the legislation and the regulations, why that view is held. In that regard, it is not sufficient that the person has an opinion from a solicitor or barrister or other professional to the effect that the transaction is not a disclosable transaction.

Details

(1) The Revenue Commissioners may make a “pre-disclosure enquiry” of a person by way of a written notice, where they have reasonable grounds for believing that the person is the promoter of a transaction that may be a disclosable transaction or is the user of an in-house scheme that may be a disclosable transaction. The notice requires the person to state whether in the person’s opinion the transaction is a disclosable transaction and, if not, the reasons for that opinion.

(2) Any notice issued by Revenue under this section shall specify the transaction in respect of which the person’s views are sought. This is designed to give reassurance that Revenue cannot simply go on a “fishing exercise” without some basis for seeking the information.

(3) If a person is of the view that the transaction is not a disclosable transaction following the receipt of a notice under this section, the person is required to provide reasons for that opinion and must demonstrate, based on the requirements of the legislation and the regulations, why that view is held. In particular, if the person asserts that the transaction or scheme does not fall within any of the specified descriptions, sufficient information must be provided to allow Revenue to confirm the assertion.

(4) It is not sufficient for the purpose of this section that the person has an opinion from a solicitor, or barrister or other professional (i.e. an accountant or member of the Irish Taxation Institute) to the effect that the transaction is not a disclosable transaction. In other words it is insufficient for a reply to a notice to simply say that the person has a professional opinion to the effect that the transaction is not a disclosable transaction – s/he is required to demonstrate by reference to the various legislative requirements and tests that the transaction is not disclosable. For example, if a person was to assert that the obtaining of the tax advantage was not a main benefit arising from the scheme the reply would have to identify the various benefits and how they had been measured relative to the tax advantage.

(5) Any notice issued under this section has to be complied with within the period specified in the notice, which shall not be less than 21 days or such longer period as may be agreed by Revenue.

Relevant Date: Finance Act 2021