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Taxes Consolidation Act, 1997 (Number 39 of 1997)

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Chapter 3A

Implementation of Council Directive (EU) 2018/822 of 25 May 20181 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements

817RA Interpretation (Chapter 3A).

(1) In this Chapter—

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the Acts” means—

(a) Parts 18C and 18D,

(b) the Stamp Duties Consolidation Act 1999 and the enactments amending or extending that Act,

(c) the Capital Acquisitions Tax Consolidation Act 2003 and the enactments amending or extending that Act,

(d) the Capital Gains Tax Acts,

(e) the Tax Acts, and

(f) any instruments made under any of the enactments referred to in paragraphs (a) to (e);

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arrangement” means—

(a) any transaction, action, course of action, course of conduct, scheme, plan or proposal,

(b) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable or intended to be enforceable by legal proceedings, and

(c) any series of or combination of the circumstances referred to in paragraphs (a) and (b),

whether entered into or arranged by one or two or more persons—

(i) whether acting in concert or not,

(ii) whether or not entered into or arranged wholly or partly outside the State, or

(iii) whether or not entered into or arranged as part of a larger arrangement or in conjunction with any other arrangement or arrangements,

but does not include an arrangement referred to in section 826;

associated enterprise” has the same meaning as it has in Article 3(23) of the Directive;

competent authority” means the authority designated as such by a Member State for the purposes of the Directive and, in relation to the State, means the Revenue Commissioners;

cross-border arrangement” means an arrangement concerning either more than one Member State or a Member State and a third country where at least one of the following conditions is met:

(a) not all of the participants in the arrangement are resident for tax purposes in the same jurisdiction;

(b) one or more of the participants in the arrangement is simultaneously resident for tax purposes in more than one jurisdiction;

(c) one or more of the participants in the arrangement carries on a business in another jurisdiction through a permanent establishment situated in that jurisdiction and the arrangement forms part or the whole of the business of that permanent establishment;

(d) one or more of the participants in the arrangement carries on an activity in another jurisdiction without being resident for tax purposes or creating a permanent establishment situated in that jurisdiction;

(e) such arrangement has a possible impact on the automatic exchange of information or the identification of beneficial ownership;

Directive” means Council Directive 2011/16/EU of 15 February 20112 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 20143, Council Directive (EU) 2015/2376 of 8 December 20154, Council Directive (EU) 2016/881 of 25 May 20165, Council Directive (EU) 2016/2258 of 6 December 20166 and Council Directive (EU) 2018/822 of 25 May 20187;

electronic means” has the same meaning as it has in section 917EA(1);

hallmark” , “marketable arrangement” and “person” have the same meanings respectively as they have in Article 3 of the Directive;

intermediary” means any person—

(a) that—

(i) designs, markets, organises or makes available for implementation or manages the implementation of a reportable cross-border arrangement, or

(ii) having regard to the relevant facts and circumstances and based on available information and the relevant expertise and understanding required to provide such services, knows or could be reasonably expected to know that such person has undertaken to provide, directly or by means of other persons, aid, assistance or advice with respect to designing, marketing, organising, making available for implementation or managing the implementation of a reportable cross-border arrangement,

and

(b) that meets at least one of the following conditions:

(i) the person is resident for tax purposes in a Member State;

(ii) the person has a permanent establishment in a Member State through which the services with respect to the arrangement are provided;

(iii) the person is incorporated in, or governed by the laws of, a Member State;

(iv) the person is registered with a professional association related to legal, taxation or consultancy services in a Member State;

reference number” means the number assigned to a reportable cross- border arrangement by the Revenue Commissioners or by the competent authority of another Member State;

Regulations of 2012” means the European Union (Administrative Cooperation in the Field of Taxation) Regulations 2012 (S.I. No. 549 of 2012);

relevant taxpayer” means any person to whom a reportable cross- border arrangement is made available for implementation, or who is ready to implement a reportable cross-border arrangement or has implemented the first step of such an arrangement;

reportable cross-border arrangement” means any cross-border arrangement that contains at least one of the hallmarks set out in Annex IV of the Directive;

return” has the same meaning as it has in section 917D(1);

specified information” means, in respect of a reportable cross-border arrangement, the information set out in subsection (3);

tax advantage” means—

(a) relief or increased relief from, or a reduction, avoidance or deferral of, any assessment, charge or liability to tax, including any potential or prospective assessment, charge or liability,

(b) a refund or repayment of, or a payment of, an amount of tax, or an increase in an amount of tax refundable, repayable or otherwise payable to a person, including any potential or prospective amount so refundable, repayable or payable, or an advancement of any refund or repayment of, or payment of, an amount of tax to a person, or

(c) the avoidance of any obligation to deduct or account for tax,

arising out of or by reason of an arrangement, including an arrangement where another arrangement would not have been undertaken or arranged to achieve the results, or any part of the results, achieved or intended to be achieved by the arrangement;

taxpayer identification number” means the tax identification number (TIN) allocated to a person by the tax administration of the jurisdiction of residence of the person and, in relation to the State, means a tax reference number within the meaning of section 885.

(2) For the purposes of this Chapter, a person referred to in paragraph (a)(ii) of the definition of “intermediary” in subsection (1) shall have the right to provide evidence that such person did not know and could not reasonably be expected to know that that person was involved in a reportable cross-border arrangement and, for this purpose, that person may refer to all relevant facts and circumstances as well as available information and that person’s relevant expertise and understanding.

(3) The following is the information referred to in the definition of “specified information” in subsection (1):

(a) information in relation to the identity of each intermediary and relevant taxpayer, including—

(i) the name of each such intermediary and relevant taxpayer,

(ii) whether each such intermediary and relevant taxpayer is an individual or entity,

(iii) the date and place of birth (in the case of an individual) of each such intermediary and relevant taxpayer,

(iv) the residence for tax purposes of each such intermediary and relevant taxpayer,

(v) the taxpayer identification number of each such intermediary and relevant taxpayer,

(vi) the country of issuance of the taxpayer identification number of each such intermediary and relevant taxpayer,

(vii) if the information referred to in either or both subparagraph (v) or (vi) is not known to the person who is required to make a return under this Chapter of the specified information, the address of each such intermediary and relevant taxpayer, and

(viii) where appropriate, the persons that are associated enterprises to each such relevant taxpayer;

(b) details of each hallmark that makes the cross-border arrangement reportable;

(c) a summary of the content of the reportable cross-border arrangement, including the name by which it is commonly known, if any, and a description in abstract terms of the relevant business activities or arrangements, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information the disclosure of which would be contrary to public policy;

(d) the reference number assigned to the reportable cross-border arrangement, if any;

(e) details of the national provisions that form the basis of the reportable cross-border arrangement;

(f) the value of the reportable cross-border arrangement;

(g) the date on which the first step was taken or will be taken in implementing the reportable cross-border arrangement;

(h) the identification of the Member State of each such relevant taxpayer and any other Member States which are likely to be concerned by the reportable cross-border arrangement; and

(i) the identification of any other person in a Member State likely to be affected by the reportable cross-border arrangement, indicating to which Member States such person is linked.

(4) A word or expression which is used in this Chapter and which is also used in the Directive has, unless the context otherwise requires, the same meaning in this Chapter as it has in the Directive.

Footnotes

1OJ No. L139, 5.6.2018, 9. 1-13

2OJ No. L64, 11.3.2011, p. 1

3OJ No. L359, 16.12.2014, p. 1

4OJ No. L332, 18.12.2015, p. 1

5OJ No. L146, 3.6.2016, p. 8

6OJ No. L342, 16.12.2016, p. 1

7OJ No. L139, 5.6.2018, p. 1

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Inserted by FA19 s67(1). Comes into operation on 1 July 2020.

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Inserted by FA20 s59(a)(ii).