739KA Associated enterprises.
(1) In this section and section 739LC—
“connected” has the same meaning as in section 10, subject to the modification that references in section 10 to “control” shall be read as if they were references to control within the meaning of subsection (4) of this section;
“deposit” means a sum of money paid to an enterprise on terms under which it, or any part of it, may be repaid with or without interest and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person to whom it is made, notwithstanding that the amount to be repaid may be to any extent linked to or determined by changes in a stock exchange index or any other financial index;
“enterprise” means an entity or an individual;
(a) a person (other than an individual),
(b) an investment undertaking, subject to subsection (2),
(c) a pension scheme,
(d) an offshore fund (within the meaning of section 743(1)), or
(e) any other agreement, undertaking, scheme or arrangement, whether established or created under the law of the State or of a territory other than the State,
that would, for the purposes of the Tax Acts, be regarded as—
(i) carrying on any of the activities referred to in paragraph (b), (c) or (d) of subsection (4), or
(ii) advancing amounts, making funds available or receiving interest as referred to in subsections (3) and (4) of section 739LC;
“member” , in relation to a pension scheme, means—
(a) an employer or employee, in respect of a scheme referred to in section 774,
(b) an individual referred to in section 784(1)(a), 784A(1)(b), 784C(2) or 785(1), or
(c) a contributor, within the meaning of section 787A, in respect of a PRSA;
“significant influence in the management of”, in relation to an entity, means the ability to participate in the financial and operating decisions of that entity.
(2) Where the entity referred to in paragraph (b) of the definition of “entity” is an umbrella scheme, regard shall be had to each sub-fund of that umbrella scheme and the unit holders of that sub-fund, as if that sub-fund was an entity in its own right.
(3) For the purposes of this section and section 739LC, an enterprise shall be treated as an associate of another enterprise where—
(a) one of the 2 enterprises has control of the other enterprise, or both enterprises are under the control of the same enterprise or enterprises,
(b) one enterprise is connected with the other enterprise,
(c) those enterprises are associated within the meaning of section 739D(1)(a), where those enterprises are investment undertakings or similar entities established under the laws of a territory other than the State,
(d) one enterprise is a pension scheme and the other enterprise is a member of that scheme, or
(e) one enterprise is a scheme, similar to a pension scheme, that is established under the laws of a territory other than the State and the other enterprise is a member of that scheme.
(4) For the purposes of this section, an enterprise shall be taken to have control of an entity if one or more than one of the following conditions are satisfied:
(a) where the enterprise is an entity, and—
(i) both entities are included in the same consolidated financial statements prepared under—
(I) international accounting standards, or
(II) Irish generally accepted accounting practice,
(ii) both entities—
(I) are not included in the same consolidated financial statements, or
(II) are included in consolidated financial statements prepared under an accounting practice referred to in paragraph (a)(i) (I),
but would, if consolidated financial statements were prepared under the accounting practice referred to in paragraph (a)(i)(I), be included in the same consolidated financial statements;
(b) where that enterprise exercises, or is able to exercise or is entitled to acquire, control, whether direct or indirect, over the entity’s affairs and, in particular, but without prejudice to the generality of the foregoing—
(i) if such enterprise possesses or is entitled to acquire (other than in the circumstances described in section 739LC(4))—
(I) not less than 25 per cent of the—
(A) issued share capital of a company, or
(B) units of an investment undertaking,
(II) not less than 25 per cent of the voting power in the entity, or
(III) such rights as would if the whole of the profits of the entity were distributed, entitle the enterprise, directly or indirectly, to receive 25 per cent or more of the profits so distributed,
(ii) by virtue of any powers conferred by the constitution, articles of association or other document regulating that or any other entity;
(c) where the enterprise has significant influence in the management of the entity;
(d) where the enterprise holds one or both of the following securities in the entity:
(i) securities convertible directly or indirectly into shares in a company, or units in the investment undertaking, or securities carrying any right to receive units or securities of the entity;
(ii) securities under which the consideration given by the entity for the use of the principal secured—
(I) is to any extent dependent on the results of the entity’s business or any part of the entity’s business, where the entity is not an investment undertaking, or
(II) represents more than a reasonable commercial return for the use of that principal.
(5) Where 2 or more connected enterprises together satisfy the condition set out in subsection (4)(b), they shall each be taken to have control of the entity.
(6) For the purposes of subsection (4)(b), an enterprise shall be treated as entitled to acquire anything which such enterprise is entitled to acquire at a future date or will at a future date be entitled to acquire.
(7) For the purposes of subsections (4)(b) and (5), there shall be attributed to an enterprise any rights or powers of a nominee for such enterprise, that is, any rights or powers which another enterprise possesses on such enterprise’s behalf or may be required to exercise on such enterprise’s direction or behalf.
(8) For the purposes of subsections (4)(b) and (5), there may also be attributed to any enterprise (in this subsection referred to as the “first- mentioned enterprise” ) all the rights and powers of—
(a) any enterprise of which the first-mentioned enterprise has, or the first-mentioned enterprise and associates of the first-mentioned enterprise have, control,
(b) any 2 or more enterprises of which the first-mentioned enterprise has, or the first-mentioned enterprise and associates of the first- mentioned enterprise have, control,
(c) any associate of the first-mentioned enterprise, or
(d) any 2 or more associates of the first-mentioned enterprise,
including the rights and powers attributed to an enterprise or associate under subsection (7), but excluding those attributed to an associate under this subsection.