395B. Interim claim for carry-back of relevant losses and relevant allowances

(1) For the purposes of this section—

“the Acts” has the same meaning as it has in section 1095;

“basis period”, in respect of an individual carrying on a trade or profession for any year of assessment, is the period on the profits or gains of which income tax for that year is to be computed under Case I or II of Schedule D in respect of that trade or profession or where by virtue of the Acts the profits or gains or income of any other period are to be taken to be the profits or gains or income of that period, that other period;

“estimated relevant allowances” means an amount that, based on the best estimate that may reasonably be made, is likely to equal the amount of the relevant allowances when the amount of those allowances is calculated in accordance with section 304(3A);

“estimated relevant loss” means an amount that, based on the best estimate that may reasonably be made, is likely to equal the amount of the relevant loss when the amount of that loss is calculated in accordance with section 395A;

“excess claim” means the amount by which the amount, referred to in this definition as ‘A’, exceeds the amount referred to in this definition as ‘B’:

(a) A, being the amount of tax repaid to the individual for the year of assessment 2019 as computed in accordance with an interim claim made pursuant to this section, and

(b) B, being the amount of tax that would have been repaid to the individual for the year of assessment 2019 if that amount had been computed in accordance with a true and correct final claim;

“final claim” has the meaning given to it in subsection (4)(c);

“interim claim” has the meaning given to it in subsection (2);

“relevant allowances” has the same meaning as it has in section 304(3A);

“relevant individual” means an individual carrying on a trade or profession in whose opinion it is likely that a relevant loss or relevant allowances will arise in respect of that trade or profession;

“return” has the same meaning as it has in section 959A;

“specified return date for the tax year” has the same meaning as it has in section 959A;

“tax compliant individual” means an individual who has complied with all obligations imposed on the individual by the Acts in relation to—

(a) the payment or remittances of taxes, interest or penalties required to be paid or remitted under the Acts, and

(b) the delivery of any returns to be made under the Acts;

“tax repaid”, in relation to an excess claim, means—

(a) any amount of tax that has been repaid to the individual by the Revenue Commissioners, and

(b) any amount of tax that would have been repaid to the individual in respect of the excess claim but for the offset of that tax against any other liability of the individual in accordance with section 960H.

(2) Subject to subsections (3) and (4), a relevant individual may make a provisional claim for relief under section 395A or 304(3A), as the case may be (in this section referred to as an ‘interim claim’) as if—

(a) references to relevant losses in section 395A were references to estimated relevant losses, and

(b) references to relevant allowances in section 304(3A) were references to estimated relevant allowances.

(3) (a) Subject to paragraph (b), an interim claim made pursuant to subsection (2), where the interim claim relates to relevant losses sustained, or relevant allowances that are to be claimed—

(i) in the year of assessment 2020, may not be made after 31 May 2021, or

(ii) in the year of assessment 2021, may not be made—

(I) earlier than the end of the period of 4 months from the beginning of the basis period for the year of assessment 2021, or

(II) after 31 May 2022.

(b) An interim claim may only be made where, immediately before the claim is made, the relevant individual is a tax compliant individual.

(4) Where a relevant individual makes an interim claim—

(a) the interim claim shall be accompanied by a declaration by the relevant individual that he or she has incurred, or may reasonably expect to incur, a relevant loss or relevant allowance, as the case may be,

(b) the relevant individual shall maintain and have available such records which may reasonably be required for the purposes of determining whether the estimated relevant losses and the estimated relevant allowances have been computed in a reasonable manner and to the best of that individual’s knowledge and belief, and

(c) a claim under section 395A or 304(3A), as the case may be, shall be made by the specified return date for the tax year in which the relevant loss is sustained or relevant allowances are claimed (in this section referred to as the ‘final claim’), as the case may be, and if no such claim is made by that date then, where the amounts of the relevant loss and the relevant allowances that would be subject to such a claim are not lower than the estimated relevant loss and the estimated relevant allowances upon which the interim claim was made, the interim claim shall be deemed to be a final claim.

(5) Subject to section 959V, where subsequent to making an interim claim—

(a) but before making a final claim—

(i) it comes to an individual’s notice that the amount of the estimated relevant losses or estimated relevant allowances are lower than those upon which the interim claim has been made,

or

(ii) an individual determines that a lower portion of the estimated relevant losses or estimated relevant allowances should be claimed pursuant to this section,

the individual shall, without unreasonable delay, reduce the amount in respect of which the interim claim is made accordingly;

(b) but before the date referred to in paragraph (a)(i) or (a)(ii)(II) of subsection (3), as appropriate—

(i) it comes to an individual’s notice that the amount of the estimated relevant losses or estimated relevant allowances are greater than those upon which the interim claim has been made, or

(ii) an individual determines that a greater portion of the estimated relevant losses or estimated relevant allowances should be claimed pursuant to this section,

the individual may increase the amount in respect of which the interim claim is made accordingly.

(6) (a) Where an individual makes an interim claim which gives rise to an excess claim—

(i) then, subject to subparagraph (ii), the tax repaid in respect of the excess claim shall carry interest as determined in accordance with section 1080(2)(c) as if a reference to the date when the tax became due and payable were a reference to the date the amount was repaid by the Revenue Commissioners or offset in accordance with section 960H, as the case may be,

(ii) where the interim claim was made neither deliberately nor carelessly (within the meaning of ^[2]>section 1077E^<[2][2]>section 1077E or 1077F, as appropriate^<[2]) and the individual, without unreasonable delay upon it coming to the individual’s notice that the claim is overstated, reduces the claim by such amount as is necessary to ensure it is no longer overstated, the tax repaid in respect of the excess claim shall carry interest as determined in accordance with section 1080(2) (c) as if a reference to the date when the tax became due and payable were a reference to the date the claim was reduced.

(b) Subject to paragraph (c), for the purpose of the application of subsection (3) of section 959AO in determining whether an amount of preliminary tax has been paid by the individual in accordance with that subsection, no account shall be taken of any amount of tax repaid to the individual pursuant to this section.

(c) Paragraph (b) shall not apply where an individual makes an interim claim in a return to which ^[3]>subsection (2) or (5), as the case may be, of section 1077E^<[3][3]>subsection (2) or (5), as the case may be, of section 1077E or subsection (2) of section 1077F, as appropriate,^<[3] applies.