Select view:

Taxes Consolidation Act, 1997 (Number 39 of 1997)

[4]>

766 Deduction for certain expenditure on research and development.

[FA95 s59(1) to (4); FA96 s57(1)]

(1)(a) In this section—

appropriate inspector” has the same meaning as in section 950;

base period” means the period of 12 months ending immediately before the commencement of the first relevant period;

expenditure on research and development” means non-capital expenditure incurred by a company, being—

(i) an amount equal to 115 per cent of the aggregate of the amounts of—

(I) such part of the emoluments paid by the company to employees of the company engaged in the carrying out of research and development activities related to the company’s trade as is laid out for the purposes of those activities, and

(II) expenditure incurred by the company on materials or goods used solely by the company in the carrying out of research and development activities related to the company’s trade,

but where expenditure referred to in clauses (I) and (II) is incurred by a company (in this definition referred to as “the first-mentioned company”) which is a member of a group on behalf of another company which is a member of the group, the other company shall be treated for the purposes of the Corporation Tax Acts as having incurred the expenditure and the first-mentioned company shall be treated for those purposes as not having incurred the expenditure, and

(ii) a sum paid to another person, not being a person connected with the company, in order that such person may carry out research and development activities related to the company’s trade;

“group base expenditure on research and development” means the aggregate of the amounts of expenditure on research and development incurred in the base period by qualified companies which throughout that period are members of the group;

“group expenditure on research and development”, in relation to a relevant period, means the aggregate of the amounts of expenditure on research and development—

(i) incurred, or treated as incurred, in the relevant period by qualified companies which throughout the relevant period are members of the group, and

(ii) certified as having been incurred by those companies in certificates given to the companies by persons who are auditors of the companies appointed under section 160 of the Companies Act, 1963, or under the law of any territory where any such company is duly incorporated and which corresponds to that section;

qualified company”, in relation to a relevant period, means a company which—

(i) throughout the relevant period carries on a trade which consists wholly or mainly of the manufacture of goods in the State, but trading operations of a company shall not be treated for the purposes of this section as the manufacture of goods in the State by virtue of any section of the Tax Acts other than section 443,

(ii) holds a certificate given to it by Forbairt which certifies that in the opinion of Forbairt the research and development activities which are proposed to be carried on by or on behalf of the company have the potential to achieve the purposes set out in paragraph (iii) of the definition of “research and development activities”,

(iii) notifies the appropriate inspector before the commencement of the research and development activities of its intention to carry out such activities or to have such activities carried out on its behalf,

(iv) maintains a record of expenditure incurred in the carrying on by it or on its behalf of research and development activities in accordance with a system approved by Forbairt of recording such expenditure, and

(v) does not, at any time during the period commencing on the 10th day of May, 1995, and ending 3 years after the commencement of the first relevant period, raise any amount through the issue of eligible shares within the meaning of section 488;

“qualifying expenditure on research and development attributable to a qualified company”, in relation to a relevant period, means so much of the amount of qualifying group expenditure on research and development in the relevant period as bears to that amount the same proportion as the amount of expenditure on research and development incurred by the company in the relevant period bears to the group expenditure on research and development in the relevant period;

“qualifying group expenditure on research and development”, in relation to a relevant period, means an amount determined by the formula—

E – (D + [1]>£25,000<[1][1]>€31,743.45<[1])

where—

E is the amount of group expenditure on research and development in the relevant period, and

D is—

(i) where the relevant period commences before the 1st day of June, 1996, the greater of—

(I) the amount of group base expenditure on research and development, and

(II) the amount of group expenditure on research and development in any relevant period preceding that relevant period,

and

(ii) where the relevant period commences on or after the 1st day of June, 1996, the amount of group base expenditure on research and development,

but—

(A) the qualifying group expenditure on research and development in relation to a relevant period shall not in any case exceed [2]>£150,000<[2][2]>€190,460.71<[2], and

(B) the aggregate of the amounts of qualifying group expenditure on research and development in all relevant periods shall not exceed the aggregate of the amounts specified in certificates given by Forbairt to companies which are members of the group;

relevant period” means—

(i) in the case of a company which is a member of a group the end of the accounting periods of the members of which coincide, the period of 12 months throughout which one or more members of the group carried on a trade and ending at the end of the first accounting period of the company which commences on or after the 1st day of June, 1995,

(ii) in the case of a company which is a member of a group the end of the accounting periods of which do not coincide, the period specified in a notice in writing made jointly by companies which are members of the group and given to the appropriate inspector within a period of 9 months after the end of the period so specified, being a period of 12 months throughout which one or more members of the group carries on a trade and ending at the end of the first accounting period of a company which is a member of the group which accounting period commences on or after the 1st day of June, 1995, and

(iii) in any other case, the period of 12 months commencing on the 1st day of June, 1995,

and each subsequent period of 12 months, commencing immediately after the end of the preceding relevant period, which falls wholly in the period of 3 years commencing at the beginning of the first relevant period, but a period shall not be a relevant period if it commences on or after the 1st day of June, 1999;

research and development activities” means systematic, investigative or experimental activities which—

(i) are carried on wholly or mainly in the State,

(ii) involve innovation or technical risk, and

(iii) are carried on for the purpose of—

(I) acquiring new knowledge with a view to that knowledge having a specific commercial application, or

(II) creating new or improved materials, products, devices, processes or services,

and other activities carried on wholly or mainly in the State for a purpose directly related to the carrying on of activities of the kind referred to in paragraph (iii), but activities that are carried on by means of—

(A) market research, market testing, market development, sales promotion or consumer surveys,

(B) quality control,

(C) the making of cosmetic modifications or stylistic changes to products, processes or production methods,

(D) management studies or efficiency surveys, or

(E) research in social sciences, arts or humanities, shall not be research and development activities.

(b) For the purposes of this section—

(i) 2 companies shall be deemed to be members of a group if one company is an associated company (within the meaning of section 432) of the other company;

(ii) a company and all its associated companies shall form a group; but a company which is not a member of a group shall be treated as if it were a member of a group which consists of that company, and accordingly references to group expenditure on research and development, group base expenditure and qualifying group expenditure on research and development shall be construed as if they were respectively references to expenditure on research and development, base expenditure and qualifying expenditure on research and development;

(iii) systematic, investigative or experimental activities, or other activities, shall be regarded as carried on wholly or mainly in the State only if not less than 75 per cent of the total amount expended in the course of such activities is expended in the State;

(iv) as respects any relevant period commencing before the 1st day of June, 1996, expenditure on research and development shall not be regarded as having been incurred by a company which is a member of a group if any expenditure on research and development incurred in a relevant period or in the base period by a company which is a member of the group has been or is to be met directly or indirectly by the State or any person other than a company which is a member of the group;

(v) as respects any relevant period commencing on or after the 1st day of June, 1996, expenditure on research and development shall not be regarded as having been incurred in a relevant period by a company which is a member of a group if—

(I) in the relevant period the aggregate of amounts received by companies which are members of the group, being amounts paid directly or indirectly to the companies by the State or a person, other than a company which is a member of the group, to enable the company to meet the cost of such expenditure, exceeds [3]>£50,000<[3][3]>€63,486.90<[3], or

(II) it is expenditure—

(A) approved by Forbairt under any scheme administered by it, and

(B) which has been or is to be met to any extent directly or indirectly by the State or any person other than a company which is a member of the group.

(2)(a) In this subsection—

income from the sale of goods” has the same meaning as in section 454;

a loss from the sale of goods” has the same meaning as in section 455.

(b) On making a claim in that behalf, a qualified company shall be entitled, in computing the trading income for an accounting period of a trade carried on by it, to deduct an amount equal to treble the qualifying expenditure on research and development attributable to the qualified company as is referable to the accounting period and, subject to paragraph (c), the company shall be entitled to such a deduction in addition to any deduction to which the qualified company may otherwise be entitled in respect of expenditure incurred on research and development.

(c) Where the amount referred to in paragraph (b) exceeds an amount which apart from this subsection would be the income from the sale of goods of the trade so referred to for the accounting period, then, the excess—

(i) shall not be deductible by virtue of paragraph (b), and

(ii) shall be treated as a loss incurred in that trade, which is a loss from the sale of goods, for the purposes of relief under—

(I) section 455 or 456, or

(II) to the extent that such relief does not exceed the income from the sale of goods in the course of that trade in the accounting period for which that relief is given, section 396(1).

(3) For the purposes of subsection (2)

(a) where a relevant period coincides with an accounting period of a qualified company, the amount of qualifying expenditure on research and development attributable to the qualified company which relates to the accounting period of the company shall be the amount of that qualifying expenditure attributable to the qualified company, and

(b) where the relevant period does not coincide with an accounting period of the company—

(i) the qualifying expenditure on research and development attributable to the qualified company shall be apportioned to the accounting periods which fall wholly or partly in the relevant period, and

(ii) the amount so apportioned to an accounting period shall be treated as the amount of qualifying expenditure on research and development attributable to the qualified company which relates to that accounting period of the company.

(4) Where a company makes a claim under this section, the company shall be treated for the purpose of Part 16 as not being a qualifying company in respect of any amount raised, at any time during the period commencing on the 10th day of May, 1995, and ending 3 years after the commencement of the first relevant period, by the issue of eligible shares within the meaning of section 488.

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766 Tax credit for research and development expenditure.

(1) (a) In this section—

[49]>

appropriate inspector” has the same meaning as in section 950;

<[49]

[8]>

authorised officer” means an officer of the Revenue Commissioners authorised by them in writing for the purposes of this section;

<[8]

EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 March 1993;

expenditure on research and development”, in relation to a company, means expenditure, other than expenditure on a building or structure, incurred by the company [9]>wholly and exclusively<[9] in the carrying on by it of research and development activities in a relevant Member State, being expenditure—

[5]>

(i) which is allowable for the purposes of tax in the State as a deduction in computing the income from a trade (otherwise than by virtue of section 307) or is relieved under Part 8,

<[5]

[5]>

(i) which—

(I) is allowable for the purposes of tax in the State as a deduction in computing income from a trade (otherwise than by virtue of section 307), or would be so allowable but for the fact that for accounting purposes it is brought into account in determining the value of an intangible asset, or

(II) is relieved under Part 8,

<[5]

(ii) on machinery or plant [36]>(other than a specified intangible asset within the meaning of section 291A treated as machinery or plant by virtue of subsection (2) of that section)<[36] which qualifies for any allowance under Part 9 or this Chapter, or

(iii) which qualifies for an allowance under section 764,

but—

(I) expenditure on research and development shall not include a royalty or other sum paid by a company in respect of the user of an invention—

(A) if the royalty or other sum is paid to a person who is connected with the company within the meaning of section 10 and [57]>is income from a qualifying patent within the meaning of section 234<[57][57]>is part of overall income from a qualifying asset within the meaning of section 769G<[57], or

(B) to the extent to which the royalty or other sum exceeds the royalty or other sum which would have been paid if the payer of the royalty or other sum and the beneficial recipient of the royalty or other sum were independent persons acting at arm’s length,

[6]>

and

<[6]

[7]>

(IA) expenditure by a company on research and development shall not include any amount of interest notwithstanding that such interest is brought into account by the company in determining the value of an asset, [37]>and<[37]

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[38]>

(IB) expenditure on research and development shall not include—

(A) except as provided for in subparagraphs (vii) and (viii) of subsection (1)(b), any amount paid to another person to carry on research and development activities, or

(B) expenditure incurred by a company in the management or control of research and development activities where such activities are carried on by another person,

and ‘in the carrying on by it of research and development activities’ shall be construed accordingly, and

<[38]

(II) expenditure incurred by a company which is resident in the State shall not be expenditure on research and development if it—

(A) may be taken into account as an expense in computing income of the company,

(B) is expenditure in respect of which an allowance for capital expenditure may be made to the company, or

(C) may otherwise be allowed or relieved in relation to the company,

for the purposes of tax in a territory other than the State;

group expenditure on research and development”, in relation to a relevant period of a group of companies, means the aggregate of the amounts of expenditure on research and development incurred in the relevant period by qualified companies which for the relevant period are members of the group: but—

(i) expenditure incurred by a company which is a member of a group for a part of a relevant period shall only be included in group expenditure on research and development if the expenditure is incurred at a time when the company is a member of the group, and

(ii) expenditure on research and development incurred by a company which has been included in group expenditure on research and development in relation to a group shall not be included in group expenditure on research and development in relation to any other group;

[39]>

key employee” has the meaning ascribed to it by section 472D;

<[39]

qualified company”, in relation to a relevant period, means a company which—

(i) throughout the relevant period—

(I) carries on a trade,

(II) is a 51 per cent subsidiary of a company which carries on a trade, or

(III) is a 51 per cent subsidiary of a company whose business consists wholly or mainly of the holding of stocks, shares or securities of a company which carries on a trade or more than one such company,

[24]>

(ii) carries out research and development activities in the relevant period, and

(iii) maintains a record of expenditure incurred by it in the carrying out by it of those activities;

<[24]

[24]>

(ii) carries out research and development activities in the relevant period,

(iii) maintains a record of expenditure incurred by it in the carrying out by it of those activities, and

(iv) in the case of a company which is a member of a group of companies that carries on research and development activities in separate geographical locations, maintains separate records of expenditure incurred in respect of the activities carried on at each location;

<[24]

[54]>

“qualifying group expenditure on research and development”, in relation to a relevant period, [40]>means an amount equal to the excess of the amount of group expenditure on research and development in relation to the relevant period over the threshold amount in relation to the relevant period;<[40][40]>shall be determined by the following formula—<[40]

<[54]

[54]>

qualifying group expenditure on research and development”, in relation to—

(a) relevant periods commencing on or after 1 January 2015, shall have the same meaning as that assigned to ‘group expenditure on research and development’, and

(b) a relevant period commencing on or before 31 December 2014, shall be determined by the following formula—

<[54]

[40]>

A + B

where—

A is so much of the amount of group expenditure on research and development in relation to a relevant period as does not exceed [50]>€100,000<[50][51]>[50]>€200,000<[50]<[51][51]>€300,000<[51], and

B is the amount equal to the excess of the amount of group expenditure on research and development in relation to the relevant period over the threshold amount in relation to the relevant period,

but the amount of qualifying group expenditure on research and development in relation to a relevant period shall not exceed the amount of group expenditure on research and development in relation to that relevant period;

<[40]

relevant Member State” means a state which is a Member State of the European Communities or, not being such a Member State, a state which is a contracting party to the EEA Agreement;

relevant period” means—

(i) in the case of companies which are members of a group the respective ends of the accounting periods of the members of which coincide, the period of 12 months throughout which one or more members of the group carries on a trade and ending at the end of the first accounting period which commences on or after 1 January 2004, and

(ii) in the case of companies which are members of a group the respective ends of the accounting periods of which do not coincide, the period specified in a notice in writing made jointly by companies which are members of the group and given to the appropriate inspector within a period of 9 months after the end of the period so specified, being a period of 12 months throughout which one or more members of the group carries on a trade and ending at the end of the first accounting period of a company which is a member of the group which accounting period commences on or after 1 January 2004,

and each subsequent period of 12 months commencing immediately after the end of the preceding relevant period;

research and development activities” means systematic, investigative or experimental activities in a field of science or technology, being one or more of the following—

(i) basic research, namely, experimental or theoretical work undertaken primarily to acquire new scientific or technical knowledge without a specific practical application in view,

(ii) applied research, namely, work undertaken in order to gain scientific or technical knowledge and directed towards a specific practical application, or

(iii) experimental development, namely, work undertaken which draws on scientific or technical knowledge or practical experience for the purpose of achieving technological advancement and which is directed at producing new, or improving existing, materials, products, devices, processes, systems or services including incremental improvements thereto: but activities will not be research and development activities unless they—

(I) seek to achieve scientific or technological advancement, and

(II) involve the resolution of scientific or technological uncertainty;

[25]>

research and development centre” means a fixed base or bases, established in buildings or structures, which are used for the purpose of the carrying on by a company of research and development activities;

<[25]

[41]>

specified amount” means an amount—

(i) paid by the Revenue Commissioners in accordance with subsection (4B) of this section or section 766A(4B), as the case may be, or

(ii) surrendered in accordance with subsection (2A),

and a claim in respect of a specified amount shall be construed accordingly;

<[41]

[17]>

threshold amount”, in relation to a relevant period of a group of companies, means—

(i) where the relevant period is a period commencing at any time after 31 December 2003 and before [12]>1 January 2007<[12][15]>[12]>1 January 2010<[12]<[15][15]>1 January 2014<[15], the aggregate of the amounts of expenditure on research and development incurred in the period of one year ending on a date in the year 2003 which corresponds with the date on which the relevant period ends,

(ii) in any other case, the aggregate of the amounts of expenditure on research and development incurred in the period of one year ending on a date which is [16]>3 years<[16][16]>10 years<[16] before the end of the relevant period,

by all companies which are members of the group in the threshold period in relation to the relevant period concerned: but expenditure incurred by a company which is a member of the group for a part of the threshold period shall only be included in the threshold amount if the expenditure is incurred at a time when the company is a member of the group;

<[17]

[17]>

threshold amount”, in relation to a relevant period of a group of companies, means the aggregate of the amounts of expenditure on research and development incurred in the period of one year ending on a date in the year 2003, which corresponds with the date on which the relevant period ends by all companies which are members of the group in the threshold period, in relation to the relevant period concerned: [26]>but expenditure incurred by a company which is a member of the group for a part of the threshold period shall only be included in the threshold amount if the expenditure is incurred at a time when the company is a member of the group<[26][26]>but—<[26];

<[17]

[26]>

(i) expenditure incurred by a company which is a member of the group for a part of the threshold period shall only be included in the threshold amount if the expenditure is incurred at a time when the company is a member of the group, and

(ii) subject to subsection (7C)(a)

(I) where at any time during the threshold period, a group of companies carried on research and development activities in more than one research and development centre and each centre is in a separate geographical location, and

(II) at a time (referred to in this section as the “cessation time”) after the end of the threshold period, a research and development centre ceases to be used for the purposes of a trade by a company which is a member of the group of companies and is not so used by any other company which is a member of the group,

then expenditure incurred in relation to that research and development centre shall not be taken into account in calculating the threshold amount in relation to any relevant period which commences after the cessation time

<[26]

threshold period”, in relation to a relevant period, means the period of one year referred to in the definition of “threshold amount”;

university or institute of higher education” means—

(i) a college or institution of higher education in the State which—

(I) provides courses to which a scheme approved by the Minister for Education and Science under the Local Authorities (Higher Education Grants) Acts 1968 to 1992 applies, or

(II) operates in accordance with a code of standards which from time to time may, with the consent of the Minister for Finance, be laid down by the Minister for Education and Science, and which the Minister for Education and Science approves for the purposes of section 473A;

(ii) any university or similar institution of higher education in a relevant Member State (other than the State) which—

(I) is maintained or assisted by recurrent grants from public funds of that or any other relevant Member State (including the State), or

(II) is a duly accredited university or institution of higher education in the Member State in which it is situated.

(b) For the purposes of this section—

(i) 2 companies shall be deemed to be members of a group if one company is a 51 per cent subsidiary of the other company or both companies are 51 per cent subsidiaries of a third company: but in determining whether one company is a 51 per cent subsidiary of another company, the other company shall be treated as not being the owner of—

(I) any share capital which it owns directly in a company if a profit on a sale of the shares would be treated as a trading receipt of its trade, or

(II) any share capital which it owns indirectly, and which is owned directly by a company for which a profit on a sale of the shares would be a trading receipt;

(ii) sections 412 to 418 shall apply for the purposes of this paragraph as they would apply for the purposes of Chapter 5 of Part 12 if—

(I) “51 per cent subsidiary” were substituted for “75 per cent subsidiary” in each place where it occurs in that Chapter, and

(II) paragraph (c) of section 411(1) were deleted;

(iii) a company and all its 51 per cent subsidiaries shall form a group and, where that company is a member of a group as being itself a 51 per cent subsidiary, that group shall comprise all its 51 per cent subsidiaries and the first-mentioned group shall be deemed not to be a group: but a company which is not a member of a group shall be treated as if it were a member of a group which consists of that company;

(iv) in determining whether a company was a member of a group of companies (in this subparagraph referred to as the “threshold group”) for the purposes of determining the threshold amount in relation to a relevant period of a group of companies (in this subparagraph referred to as the “relevant group”), the threshold group shall be treated as the same group as the relevant group notwithstanding that one or more of the companies in the threshold group is not in the relevant group, or vice versa, where any person or group of persons which controlled the threshold group is the same as, or has a reasonable commonality of identity with, the person or group of persons which controls the relevant group;

(v) expenditure shall not be regarded as having been incurred by a company if it has been or is to be met directly or indirectly by grant assistance or any other assistance which is granted [42]>by or through the State, any board established by statute, any public or local authority or any other agency of the State;<[42][42]>by or through—<[42]

[42]>

(I) the State or another relevant Member State, or

(II) any board established by statute, any public or local authority or any other agency of the State or another relevant Member State;

<[42]

(vi) where a company—

(I) incurs expenditure on research and development at a time when the company is not carrying on a trade, being expenditure which, apart from this subparagraph, is not included in group expenditure on [27]>research and development, and<[27][27]>research and development,<[27]

[28]>

(II) the company begins to carry on a trade after that time,

<[28]

[28]>

(II) begins to carry on a trade after that time, and

<[28]

[29]>

(III) makes a claim in respect of expenditure incurred at a time referred to in clause (I),

<[29]

[30]>

the expenditure shall be treated as it would if the company had commenced to carry on the trade at the time the expenditure was incurred;

<[30]

[30]>

the expenditure shall be treated—

(A) for the purpose only of subsection (5), as incurred at the time the company begins to carry on the trade, and

(B) for the purposes of subsection (2), as it would if the company had commenced to carry on a trade at the time the expenditure was incurred, and the amount of any credit computed thereon shall be carried forward in accordance with subsection (4) and treated as an amount by which the corporation tax of the first accounting period which commenced on or after the time the company begins to trade is reduced;

<[30]

(vii) where in any period a company—

(I) incurs expenditure on research and development, and

(II) pays a sum to a university or institute of higher education in order for that university or institute to carry on research and development activities in a relevant Member State,

so much of the sum so paid as does not exceed [43]>5 per cent of that expenditure shall be treated as if it were expenditure incurred by the company on the carrying on by it of research and development [13]>activities.<[13][13]>activities;<[13]<[43][43]>the greater of 5 per cent of that expenditure or €100,000, shall, to the extent that it does not exceed the expenditure referred to in clause (I), be treated as if it were expenditure incurred by the company in the carrying on by it of research and development activities;<[43]

[44]>

[14]>

(viii) where in any period a company—

(I) incurs expenditure on research and development, and

(II) pays a sum (not being a sum referred to in subparagraph (vii)(II)) to a person, other than to a person who is connected (within the meaning of section 10) with the company, in order for that person to carry on research and development activities, and that person does not claim relief under this section in respect of such expenditure on research and development,

so much of the sum so paid as does not exceed 10 per cent of that expenditure incurred by the company on research and development shall be treated as if it were expenditure incurred by the company on the carrying on by it of [31]>research and development activities.<[31][31]>research and development activities;<[31]

<[14]

<[44]

[44]>

(viii) where in any period a company—

(I) incurs expenditure on research and development, and

(II) pays a sum (not being a sum referred to in clause (II) of subparagraph (vii)) to a person, other than to a person who is connected (within the meaning of section 10) with the company, in order for that person to carry on research and development activities, and notifies that person in writing that the payment is a payment to which this clause applies and that the person may not make a claim under this section in respect of such research and development activities,

then, so much of the sum so paid as does not exceed the greater of [52]>10 per cent<[52][52]>15 per cent<[52] of that expenditure or €100,000, shall, to the extent that it does not exceed the expenditure referred to in clause (I), be treated as if it were expenditure incurred by the company in the carrying on by it of research and development activities and expenditure incurred by that other person in connection with the activities referred to in clause (II) shall not be expenditure on research and development;

<[44]

[32]>

(ix) A research and development centre used by a company which is a member of a group of companies will be treated as being in a separate geographical location to another research and development centre used by the company or another company which is a member of the group if it is not less than a distance of 20 kilometres from that other research and development centre.

<[32]

[10]>

(1A) (a) Where expenditure is incurred by a company on machinery or plant which qualifies for any allowance under Part 9 or this Chapter and the machinery or plant will not be used by the company wholly and exclusively for the purposes of research and development, the amount of the expenditure attributable to research and development shall be such portion of that expenditure [58]>as appears to the inspector (or on appeal the Appeal Commissioners) to be just and reasonable<[58][58]>as is just and reasonable<[58], and such portion of the expenditure shall be treated for the purposes of subsection (1)(a) as incurred by the company wholly and exclusively in carrying on research and development activities.

(b) Where, at any time, the apportionment made under paragraph (a), or a further apportionment made under this paragraph, ceases to be just and reasonable, then—

(i) such further apportionment shall be made at that time [59]>as appears to the inspector (or on appeal the Appeal Commissioners) to be just and reasonable<[59][59]>as is just and reasonable<[59],

(ii) any such further apportionment shall supersede any earlier apportionment, and

(iii) any such adjustments, assessments or repayments of tax shall be made as are necessary to give effect to any apportionment under this subsection.

<[10]

(2) [45]>Where<[45][45]>Subject to subsection (2A) where<[45] for any accounting period a company makes a claim in that behalf to the appropriate inspector, the corporation tax of the company for that accounting period shall be reduced by an amount equal to [18]>20 per cent<[18][18]>25 per cent<[18] of qualifying expenditure attributable to the company as is referable to the accounting period.

[46]>

(2A) (a) Subject to paragraph (c), where as respects any accounting period a company is entitled to reduce the corporation tax of that accounting period by an amount, in accordance with subsection (2), the company may instead on making a claim in that behalf to the appropriate inspector surrender all or part of that amount to one or such number of key employees as the company may specify but the aggregate of such amounts, attributable to such employees, may not exceed the amount so surrendered.

(b) The part of that amount that may be surrendered by the company may not exceed the corporation tax of the accounting period, which would be chargeable, if no claim could be made in accordance with subsection (2).

(c) A company may not make a claim under this subsection where, at the time of making such a claim the company has a liability (within the meaning of section 960H) in respect of the corporation tax of the accounting period referred to in subsection (2) or a previous accounting period.

(d) A claim in accordance with this subsection shall be made in such form as the Revenue Commissioners may prescribe and the company shall notify the key employee, in writing, of any amount surrendered to that employee.

(2B) Where as respects any accounting period a company makes a claim under subsections (2) and (2A) and in accordance with that claim—

(a) the corporation tax of an accounting period is reduced and an amount is surrendered, and

(b) either or both the amount so reduced or surrendered, as the case may be, is subsequently found not to have been as is authorised by this section,

then, the amount which is not so authorised shall be first attributable to a claim under subsection (2) in priority to a claim under subsection (2A).

(2C) Where in respect of an accounting period, a company makes a claim under subsection (2A) and it is subsequently found that the amount surrendered in accordance with that claim (hereafter in this section referred to as the “initial amount”) is not as authorised by this section, then, in relation to each key employee, the amount surrendered, which is authorised by this section, shall be an amount (hereafter in this section referred to as the “relevant authorised amount”) determined by the formula—

B

A ×  

 C 

where—

A is the portion of the initial amount attributable to that key employee in accordance with the claim under subsection (2A),

B is the aggregate amount that may be surrendered by the company for that accounting period as is authorised by this section, and

C is the initial amount,

and the company shall notify the key employee in writing of the relevant authorised amount.

<[46]

(3) For the purposes of subsection (2)

(a) qualifying expenditure attributable to a company in relation to a relevant period shall be so much of the amount of qualifying group expenditure on research and development in the relevant period as is attributed to the company in the manner specified in a notice made jointly in writing to the appropriate inspector by the qualified companies that are members of the group: but where no such notice is given means an amount determined by the formula—

Q

×

C

G

where—

Q is the qualifying group expenditure on research and development in the relevant period,

C is the amount of expenditure on research and development incurred by the company in the relevant period at a time when the company is a member of the group, and

G is the group expenditure on research and development in the relevant period,

(b) where a relevant period coincides with an accounting period of a company, the amount of qualifying expenditure on research and development attributable to the company as is referable to the accounting period of the company shall be the full amount of that expenditure, and

(c) where the relevant period does not coincide with an accounting period of the company—

(i) the qualifying expenditure on research and development attributable to the company shall be apportioned to the accounting periods which fall wholly or partly in the relevant period, and

(ii) the amount so apportioned to an accounting period shall be treated as the amount of qualifying expenditure on research and development attributable to the company as is referable to the accounting period of the company.

(4) [19]>Where<[19][20]>Subject to subsections (4A) and (4B), where<[20] as respects any accounting period of a company the amount by which the company is entitled to reduce corporation tax of the accounting period exceeds the corporation tax of the company for the accounting period, the excess shall be carried forward and treated as an amount by which corporation tax for the next succeeding accounting period may be reduced, and so on for succeeding accounting periods.

[21]>

(4A) (a) Where as respects any accounting period of a company the amount by which the company is entitled to reduce corporation tax of the accounting period exceeds the corporation tax of the company for the accounting period, the company may make a claim requiring the corporation tax of the preceding accounting period ending within the time specified in paragraph (b) to be reduced by the amount of the excess.

(b) The time referred to in paragraph (a) shall be a time immediately preceding the accounting period first mentioned in that paragraph, equal in length to that accounting period, but the amount of the reduction which may be made under paragraph (a) in the corporation tax of an accounting period falling partly before that time shall not exceed the corporation tax referable to the part of those profits proportionate to the part of the period falling within that time.

(4B) (a) Where a claim under subsection (4A)(a) has been made, and the amount of the excess referred to in subsection (4A)(a) exceeds the corporation tax of the preceding accounting periods ending within the time specified in subsection (4A)(b) or where no corporation tax arises for those preceding accounting periods, the company may make a claim to have any excess remaining paid to the company by the Revenue Commissioners.

(b) Subject to section 766B, on receipt of a claim the Revenue Commissioners shall pay any excess remaining to the company, in 3 instalments—

(i) the first instalment shall be paid by the Revenue Commissioners not earlier than the date provided for in paragraph (b) of the definition of “specified return date for the chargeable period” as defined in section 950(1), for the accounting period in which the expenditure on research and development was incurred and shall equal 33 per cent of the excess remaining,

(ii) in respect of the second instalment—

(I) the excess remaining, as reduced by the first instalment under subparagraph (i), shall be first treated as an amount by which the corporation tax of the accounting period next succeeding the accounting period in which the expenditure giving rise to the claim under this subsection was incurred, is reduced in accordance with subsection (4), and

(II) the second instalment shall be paid by the Revenue Commissioners not earlier than 12 months immediately following the date referred to in subparagraph (i) and shall equal 50 per cent of the amount [33]>by which the excess remaining is reduced<[33][33]>of the excess remaining as reduced<[33] by the aggregate of the first instalment under subparagraph (i) and the amount treated as reducing the corporation tax of an accounting period under clause (I),

and

(iii) in respect of the last instalment—

(I) the excess remaining, as reduced by the first and second instalments and by the amount treated as reducing the corporation tax of an accounting period under clause (I) of subpara-graph (ii), shall be first treated as an amount by which the corporation tax of the accounting period next succeeding the accounting period referred to in clause (I) of subpara-graph (ii) is reduced in accordance with subsection (4), and

(II) the last instalment shall be paid by the Revenue Commissioners not earlier than 24 months immediately following the date referred to in subparagraph (i) and shall equal the amount by which the excess remaining is reduced by the first and second instalments and by the total of the amounts by which the corporation tax of an accounting period is reduced under clause (I) of subparagraph (ii) and under clause (I) of this subparagraph.

<[21]

[47]>

(4C) Where a company (in this section and section 766A referred to as the “predecessor”) which has made a claim in accordance with this section ceases to carry on a trade which includes the carrying on by it of research and development activities and another company (in this section and section 766A referred to as the “successor”) commences to carry on the trade and those research and development activities (the cessation and commencement referred to in this section and section 766A as the ‘event’) and—

(a) both the predecessor and successor were, at the time of the event, members of the same group of companies within the meaning of section 411(1), and

(b) on or at any time within 2 years after the event the trade and the research and development activities are not carried on otherwise than by the successor,

then the successor may, to the extent that the predecessor has not used an amount to reduce the corporation tax of an accounting period in accordance with subsection (2), surrendered an amount in accordance with subsection (2A) or made a claim under subsection (4A) or (4B), carry forward any excess that the predecessor would have been entitled to carry forward in accordance with subsection (4).

<[47]

[22]>

(5) Where a company claims relief under this section in respect of any accounting period, it shall specify the amount of relief claimed in its return under section 951 for that accounting period.

<[22]

[22]>

(5) Any claim under this section shall be made within 12 months from the end of the accounting period in which the expenditure on research and development, giving rise to the claim, is incurred.

<[22]

(6) (a) The Minister for Enterprise, Trade and Employment, in consultation with the Minister for Finance, may make regulations for the purposes of this section providing—

(i) that such categories of activities as may be specified in the regulations are not research and development activities, and

(ii) that such other categories of activities as may be specified in the regulations are research and development activities.

(b) Where regulations are to be made under this subsection, a draft of the regulations shall be laid before Dáil Éireann and the regulations shall not be made until a resolution approving the draft has been passed by Dáil Éireann.

<[4]

[11]>

(7) (a) [60]>The Revenue Commissioners<[60][60]>An authorised officer<[60] may in relation to a claim by a company under this section or section 766A

(i) consult with any person who in their opinion may be of assistance to them in ascertaining whether the expenditure incurred by the company was incurred in the carrying on by it of research and development activities, and

(ii) notwithstanding any obligation as to secrecy or other restriction on the disclosure of information imposed by, or under, the Tax Acts or any other statute or otherwise, but subject to paragraph (b), disclose any detail in the company’s claim under this section, or under section 766A, which they consider necessary for the purposes of such consultation.

[61]>

(b) (i) Before disclosing information to any person under paragraph (a), the Revenue Commissioners shall make known to the company—

(I) the identity of the person who they intend to consult, and

(II) the information they intend to disclose to the person.

(ii) Where the company shows to the satisfaction of the Revenue Commissioners (or on appeal to the Appeal Commissioners) that disclosure of such information to that person could prejudice the company’s business, then the Revenue Commissioners shall not make such disclosure.

<[61]

[61]>

(b) Before disclosing information to any person under paragraph (a), an authorised officer shall give notice in writing to the company of—

(i) the officer's intention to disclose information,

(ii) the information that the officer intends to disclose, and

(iii) the identity of the person whom the officer intends to consult,

and shall give the company a period of 30 days after the date of the notice to show to his or her satisfaction that disclosure of such information to that person could prejudice the company's business.

(c) Where, on the expiry of the period referred to in paragraph (b), it is not shown to the satisfaction of the authorised officer that disclosure could prejudice the company's business, the officer may disclose the information where he or she—

(i) gives notice in writing to the company of his or her decision to disclose the information, and

(ii) allows the company a period of 30 days after the date of the notice to appeal the decision to the Appeal Commissioners before disclosing the information.

(d) A company aggrieved by a decision made under paragraph (c) in respect of it may appeal the decision to the Appeal Commissioners, in accordance with section 949I, within the period of 30 days after the date of the notice of that decision.

<[61]

[23]>

(7A) Any amount payable by virtue of subsection (4B) shall not be income of the company or another company for any tax purpose.

[48]>

(7B) Any amount payable by the Revenue Commissioners to the company or another company by virtue of subsection (4B) shall be deemed to be an overpayment of corporation tax, for the purposes only of [34]>section 1006A(2)<[34][34]>section 960H(2)<[34].

<[48]

[48]>

(7B) (a) Any amount payable by the Revenue Commissioners to the company or another company by virtue of subsection (4B) shall be deemed to be an overpayment of corporation tax, for the purposes only of section 960H(2).

(b) Any claim in respect of a specified amount shall be deemed for the purposes of section 1077E to be a claim in connection with a credit and, for the purposes of determining an amount in accordance with section 1077E(11) or 1077E(12), a reference to an amount of tax that would have been payable for the relevant periods by the person concerned shall be read as if it were a reference to a specified amount.

[53]>

(c) Where a company makes a claim in respect of a specified amount and it is subsequently found that the claim is not as authorised by this section or by section 766A, as the case may be, then the company may be charged to tax under Case IV of Schedule D for the accounting period in respect of which the payment was made or the amount surrendered, as the case may be, in an amount equal to 4 times so much of the specified amount as is not so authorised.

<[53]

[53]>

(c) (i) Subject to subparagraph (ii), where a company makes a claim in respect of a specified amount and it is subsequently found that the claim is not as authorised by this section or by section 766A, as the case may be, then the company may be charged to tax under Case IV of Schedule D for the accounting period in respect of which the payment was made or the amount surrendered, as the case may be, in an amount equal to 4 times so much of the specified amount as is not so authorised.

(ii) Where a company makes a claim under subsection (2A) and it is subsequently found that the claim is deliberately false or overstated and that the amount surrendered in accordance with that claim is not as authorised by this section, then subparagraph (i) shall not apply and the company shall be charged to tax under Case IV of Schedule D for the accounting period in respect of which the amount was surrendered in an amount equal to 8 times so much of the amount surrendered as is not so authorised.

<[53]

(d) Where in accordance with paragraph (c) an inspector makes an assessment in respect of a specified amount, the amount so charged shall for the purposes of section 1080 be deemed to be tax due and payable and shall carry interest as determined in accordance with subsection (2)(c) of section 1080 as if a reference to the date when the tax became due and payable were a reference to the date the amount was paid by the Revenue Commissioners, or a reference to the date the corporation tax of the company for the accounting period in respect of which the amount was surrendered, was payable, as the case may be.

<[48]

<[23]

[35]>

(7C) (a) Subparagraph (ii) of the definition of “threshold amount” shall not apply in relation to a relevant period [55]>commencing on or after 1 January 2010<[55] (in this paragraph referred to as the “first-mentioned relevant period”) or any relevant period subsequent to that relevant period, where, at a time during that first-mentioned relevant period or any later relevant period, being a time subsequent to the cessation time—

(i) the research and development centre referred to in clause (II) of subparagraph (ii) of the definition of “threshold amount” is used for the purposes of a trade by a company which is a member of the group, or

(ii) activities substantially the same as the research and development activities which were carried on in that research and development centre at any time in the 48 months immediately preceding the cessation time are carried on [56]>in the State<[56] by a company which is a member of the group of companies.

(b) Where—

(i) by virtue of subparagraph (ii) of the definition of “threshold amount”, expenditure incurred in the threshold period is not taken into account in calculating the threshold amount in relation to a relevant period, and

(ii) by virtue of paragraph (a) of this subsection, subparagraph (ii) of that definition does not apply in relation to a subsequent relevant period,

then, in respect of the accounting period commencing at the same time as that subsequent relevant period or where no accounting period commences at that time, the first accounting period commencing after that time, the company referred to in subparagraph (i) or (ii) of paragraph (a), as the case may be, shall be charged to tax under Case IV of Schedule D on an amount equal to the aggregate of the amounts by which the qualifying group expenditure on research and development has been increased, as a result of a reduction in the threshold amount by virtue of subparagraph (ii) of the definition of threshold amount, for relevant periods, taking account of each relevant period in respect of which the qualifying group expenditure on research and development was so increased.

(c) Where—

(i) by virtue of subparagraph (ii) of the definition of “threshold amount”, expenditure incurred in the threshold period by a company which is a member of a group of companies is not taken into account in calculating the threshold amount in relation to a relevant period, and

(ii) at any time during the period of 10 years commencing on the date on which the research and development centre ceased to be used, no company which is a member of the group is carrying on a trade which is within the charge to corporation tax,

then, in respect of the final accounting period for which a company which is a member of the group is chargeable to corporation tax in respect of its trade, that company shall be charged to tax under Case IV of Schedule D on an amount equal to the aggregate of the amounts by which the qualifying group expenditure on research and development has been increased, as a result of a reduction in the threshold amount by virtue of subparagraph (ii) of the definition of threshold amount, for relevant periods, taking account of each relevant period in respect of which the qualifying group expenditure on research and development was so increased, as reduced by any amount charged to tax in accordance with paragraph (b).

<[35]

(8) Any functions which are authorised by subsection (7) to be performed or discharged by the Revenue Commissioners may be performed or discharged by an authorised officer and any references in subsection (7) to the Revenue Commissioners shall, with any necessary modifications, be construed as including references to the authorised officer.

<[11]

[1]

[-] [+]

Substituted by FA01 sched5.

[2]

[-] [+]

Substituted by FA01 sched5.

[3]

[-] [+]

Substituted by FA01 sched5.

[4]

[-] [+]

Substituted by FA04 s33(1)(a). This section comes into operation on such day as the Minister for Finance may appoint by order and has effect as respects expenditure incurred on or after that day. With effect from 1 January 2004 per SI 425 of 2004.

[5]

[-] [+]

Substituted by FA05 s48(1)(f)(i). This section applies as respects any period of account beginning on or after 1 January 2005. With effect from 1 January 2005 per SI 434 of 2004.

[6]

[-]

Deleted by FA05 s48(1)(f)(ii). This section applies as respects any period of account beginning on or after 1 January 2005. With effect from 1 January 2005 per SI 434 of 2004.

[7]

[+]

Inserted by FA05 s48(1)(f)(ii). This section applies as respects any period of account beginning on or after 1 January 2005. With effect from 1 January 2005 per SI 434 of 2004.

[8]

[+]

Inserted by FA06 s66(1)(a)(i). This section applies for accounting periods ending on or after 2 February 2006.

[9]

[+]

Inserted by FA06 s66(1)(a)(ii). This section applies for accounting periods ending on or after 2 February 2006.

[10]

[+]

Inserted by FA06 s66(1)(b). This section applies for accounting periods ending on or after 2 February 2006.

[11]

[+]

Inserted by FA06 s66(1)(c). This section applies for accounting periods ending on or after 2 February 2006.

[12]

[-] [+]

Substituted by FA07 s46(1)(a). Applies for accounting periods commencing on or after 1 January 2007.

[13]

[-] [+]

Substituted by FA07 s46(1)(b)(i). Applies as respects accounting periods ending on or after 1 January 2007 in respect of expenditure incurred on or after 1 January 2007.

[14]

[+]

Inserted by FA07 s46(1)(b)(ii). Applies as respects accounting periods ending on or after 1 January 2007 in respect of expenditure incurred on or after 1 January 2007.

[15]

[-] [+]

Substituted by FA08 s50(1)(a). Applies to accounting periods commencing on or after 1 January 2008.

[16]

[-] [+]

Substituted by FA08 s50(1)(b). Applies to accounting periods commencing on or after 1 January 2008.

[17]

[-] [+]

Substituted by F(No.2)A08 s34(1)(a). Applies to expenditure incurred in accounting periods commencing on or after 1 January 2009.

[18]

[-] [+]

Substituted by F(No.2)A08 s34(1)(b). Applies to expenditure incurred in accounting periods commencing on or after 1 January 2009.

[19]

[-]

Deleted by F(No.2)A08 s34(1)(c). Applies to expenditure incurred in accounting periods commencing on or after 1 January 2009.

[20]

[+]

Substituted by F(No.2)A08 s34(1)(c). Applies to expenditure incurred in accounting periods commencing on or after 1 January 2009.

[21]

[+]

Inserted by F(No.2)A08 s34(1)(d). Applies to expenditure incurred in accounting periods commencing on or after 1 January 2009.

[22]

[-] [+]

Substituted by F(No.2)A08 s34(1)(e). Applies to claims under section 766 made on or after 1 January 2009.

[23]

[+]

Inserted by F(No.2)A08 s34(1)(f). Applies to expenditure incurred in accounting periods commencing on or after 1 January 2009.

[24]

[-] [+]

Substituted by FA10 s54(1)(a). Applies to relevant periods commencing on or after 1 January 2010.

[25]

[+]

Inserted by FA10 s54(1)(b). Applies to relevant periods commencing on or after 1 January 2010.

[26]

[-] [+] [+]

Substituted by FA10 s54(1)(c). Deemed to have come into force and takes effect as on and from 1 January 2010.

[27]

[-] [+]

Substituted by FA10 s54(1)(d). Deemed to have come into force and takes effect as on and from 1 January 2010.

[28]

[-] [+]

Substituted by FA10 s54(1)(e). Deemed to have come into force and takes effect as on and from 1 January 2010.

[29]

[+]

Inserted by FA10 s54(1)(f). Deemed to have come into force and takes effect as on and from 1 January 2010.

[30]

[-] [+]

Substituted by FA10 s54(1)(g). Applies to accounting periods commencing on or after 1 January 2010.

[31]

[-] [+]

Substituted by FA10 s54(1)(h). Deemed to have come into force and takes effect as on and from 1 January 2010.

[32]

[+]

Inserted by FA10 s54(1)(i). Deemed to have come into force and takes effect as on and from 1 January 2010.

[33]

[-] [+]

Substituted by FA10 s54(1)(j). Applies and has effect from 1 January 2010.

[34]

[-] [+]

Substituted by FA10 s54(1)(k). Applies and has effect from 1 January 2010.

[35]

[+]

Inserted by FA10 s54(1)(l). Deemed to have come into force and takes effect as on and from 1 January 2010.

[36]

[+]

Inserted by FA11 s41. Deemed to have come into force and takes effect as on and from 1 January 2011.

[37]

[-]

Deleted by FA12 s27(1)(a). Applies to accounting periods commencing on or after 1 January 2012.

[38]

[+]

Inserted by FA12 s27(1)(a). Applies to accounting periods commencing on or after 1 January 2012.

[39]

[+]

Inserted by FA12 s27(1)(b). Applies to accounting periods commencing on or after 1 January 2012.

[40]

[-] [+] [+]

Substituted by FA12 s27(1)(c). Applies to accounting periods commencing on or after 1 January 2012.

[41]

[+]

Inserted by FA12 s27(1)(d). Applies to accounting periods commencing on or after 1 January 2012.

[42]

[-] [+] [+]

Substituted by FA12 s27(1)(e). Applies to accounting periods commencing on or after 1 January 2012.

[43]

[-] [+]

Substituted by FA12 s27(1)(f). Applies to accounting periods ending on or after 1 January 2012.

[44]

[-] [+]

Substituted by FA12 s27(1)(g). Applies to accounting periods ending on or after 1 January 2012.

[45]

[-] [+]

Substituted by FA12 s27(1)(h). Applies to accounting periods commencing on or after 1 January 2012.

[46]

[+]

Inserted by FA12 s27(1)(i). Applies to accounting periods commencing on or after 1 January 2012.

[47]

[+]

Inserted by FA12 s27(1)(j). Applies to accounting periods commencing on or after 1 January 2012.

[48]

[-] [+]

Substituted by FA12 s27(1)(k). Applies to accounting periods commencing on or after 1 January 2012.

[49]

[-]

Deleted by FA12 sched5(1)(g).

[50]

[-] [+]

Substituted by FA13 s28(1). Applies to accounting periods commencing on or after 1 January 2013.

[51]

[-] [+]

Substituted by F(No.2)A13 s21(1)(a). Applies to accounting periods commencing on or after 1 January 2014.

[52]

[-] [+]

Substituted by F(No.2)A13 s21(1)(b). Applies to accounting periods commencing on or after 1 January 2014.

[53]

[-] [+]

Substituted by F(No.2)A13 s21(1)(c). Applies to accounting periods commencing on or after 1 January 2014.

[54]

[-] [+]

Substituted by FA14 s26(a). Comes into operation on 1 January 2015.

[55]

[+]

Inserted by FA14 s26(b)(i). Comes into operation on 1 January 2015.

[56]

[+]

Inserted by FA14 s26(b)(ii). Comes into operation on 1 January 2015.

[57]

[-] [+]

Substituted by FA15 s32(1)(c). Comes into operation on 1 January 2016.

[58]

[-] [+]

Substituted by F(TA)A15 s38(6)(a)(i). With effect from 21 March 2016 per S. I. No 110 of 2016.

[59]

[-] [+]

Substituted by F(TA)A15 s38(6)(a)(i). With effect from 21 March 2016 per S. I. No 110 of 2016.

[60]

[-] [+]

Substituted by F(TA)A15 s38(6)(a)(ii). With effect from 21 March 2016 per S. I. No 110 of 2016.

[61]

[-] [+]

Substituted by F(TA)A15 s38(6)(a)(iii). With effect from 21 March 2016 per S. I. No 110 of 2016.