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Emergency Measures in the Public Interest (Covid-19) Act 2020

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28B. Covid-19: employment wage subsidy scheme

(1) In this section—

Act” means the Taxes Consolidation Act 1997;

contribution week” has the same meaning as it has in section 2 of the Social Welfare Consolidation Act 2005;

emoluments”, “employer”, “employee” and “income tax month” have the same meanings as they have in Chapter 4 of Part 42 of the Act;

gross pay” has the same meaning as it has in the Regulations;

Minister’ means the Minister for Finance;

qualifying employee”, in relation to an employer, means—

(a) an individual who, in relation to the employer, is or was a specified employee for the purposes of section 28, and

(b) an individual, not being an individual to whom paragraph (a) applies,

who is on the payroll of the employer at any time in the qualifying period and receives in that period a payment of emoluments from the employer, but does not include—

(i) in any case where the employer is a company, an individual who is a proprietary director (within the meaning of section 472 of the Act) of the company, and

(ii) in the case of paragraph (b), any individual who is connected with the employer other than where that individual had been on the payroll of the employer at any time in the period from 1 July 2019 to 30 June 2020 and had received in that period a payment of emoluments from the employer,

and, for the purposes of this definition, the question of whether an individual is connected with any other person shall be determined in accordance with section 10 of the Act as it applies for the purposes of the Capital Gains Tax Acts;

qualifying period” means the period commencing on 1 July 2020 and expiring on 31 March 2021 or on such later day than 31 March 2021 as the Minister may specify in an order made by him or her under subsection (21)(a);

Regulations” means the Income Tax (Employments) Regulations 2018 (S.I. No. 345 of 2018);

wage subsidy payment” shall be construed in accordance with subsections (7), (8) and (21)(c).

(2) Subject to subsections (4) and (5), this section shall apply to an employer where—

(a) (i) in accordance with guidelines published by the Revenue Commissioners under subsection (20)(a), the employer demonstrates to the satisfaction of the Revenue Commissioners that, by reason of Covid-19 and the disruption that is being caused thereby to commerce—

(I) there will occur in the period from 1 July 2020 to 31 December 2020 (in this subsection referred to as ‘the specified period’) at least a 30 per cent reduction, or such other percentage reduction as the Minister may specify in an order made by him or her under subsection (21)(b), in either the turnover of the employer’s business or in the customer orders being received by the employer by reference to the period from 1 July 2019 to 31 December 2019 (in this subsection referred to as ‘the corresponding period’),

(II) in the case where the business of the employer has not operated for the whole of the corresponding period but the commencement of that business’s operation occurred no later than 1 November 2019, there will occur in the part of the specified period, which corresponds to the part of the corresponding period in which the business has operated, at least a 30 per cent reduction, or such other percentage reduction as the Minister may specify in an order made by him or her under subsection (21)(b), in either the turnover of the employer’s business or in the customer orders being received by the employer by reference to that part of the corresponding period, or

(III) in the case where the commencement of the operation of the employer’s business occurred after 1 November 2019, the nature of the business is such that the turnover of the employer’s business or the customer orders being received by the employer in the specified period will be at least—

(A) 30 per cent, or

(B) such other percentage as the Minister may specify in an order made by him or her under subsection (21)(b),

less than what that turnover or those customer orders, as the case may be, would otherwise have been had there been no disruption caused to the business by reason of Covid-19, or

(ii) the employer’s name is entered in the register established and maintained under section 58C of the Child Care Act 1991,

and

(b) the employer satisfies the conditions specified in subsection (3).

(3) The conditions referred to in subsection (2)(b) are—

(a) the employer has logged on to the online system of the Revenue Commissioners (in this section referred to as ‘ROS’) and applied on ROS to be registered as an employer to which this section applies,

(b) having read the declaration referred to in ROS as the ‘Covid-19: Employment Wage Subsidy Scheme’ declaration, the employer has submitted that declaration to the Revenue Commissioners through ROS,

(c) the employer has provided details of the employer’s bank account on ROS in the ‘Manage bank accounts’ and ‘Manage EFT’ fields, and

(d) the employer is throughout the qualifying period eligible for a tax clearance certificate, within the meaning of section 1095 of the Act, to be issued to him or her.

(4) Where on any date in the qualifying period the employer ceases to satisfy the condition specified in subsection (3)(d), the employer shall cease to be an employer to which this section applies as on and from that date.

(5) Where, by virtue of subsection (2) (apart from paragraph (a)(ii) thereof), and subsection (3), an employer is an employer to which this section applies—

(a) immediately upon the end of each income tax month (in this subsection referred to as ‘the relevant income tax month’) in the qualifying period, apart from July 2020 and the last such month, the employer shall review his or her business circumstances, and

(b) if, based on the result of that review, it is manifest to the employer that the outcome referred to in clause (I), (II) or (III), as the case may be, of subsection (2)(a)(i) that had previously been envisaged would occur will not, in fact, now occur, then—

(i) the employer shall immediately log on to ROS and declare that, from the first day of the income tax month following the relevant income tax month (in subparagraph (ii) referred to as ‘the relevant day’), the employer is no longer an employer to which this section applies, and

(ii) on and from the relevant day, the employer shall not be an employer to which this section applies and shall not represent that his or her status is otherwise than as referred to in this subparagraph nor cause the Revenue Commissioners to believe it to be so otherwise.

(6) (a) In this subsection, ‘authorised officer’ means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this subsection.

(b) Where, upon making enquiries or on the basis of information already in the possession of the Revenue Commissioners, an authorised officer determines that it is reasonable to conclude that an employer, at any time in the qualifying period—

(i) has, with respect to the operation of the employer’s payroll, in relation to the payment of emoluments to a qualifying employee, resorted to any contrivance by way of deferring, suspending, increasing or decreasing the gross pay that would otherwise have normally been paid to the qualifying employee, with a view to securing from the Revenue Commissioners a wage subsidy payment, or an increase in the amount of a wage subsidy payment, in relation to the qualifying employee, or

(ii) other than for bona fide commercial reasons, has laid off and removed from the employer’s payroll a qualifying employee (in this subparagraph referred to as ‘the first-mentioned employee’) and replaced the first-mentioned employee with two or more qualifying employees each of whom work less hours than the first-mentioned employee, with a view to securing an increase in the number of qualifying employees in relation to whom a wage subsidy payment is payable from the Revenue Commissioners,

the employer shall be deemed to have ceased to be, and to have never been, an employer to which this section applies in relation to any of its employees, and any wage subsidy payments that had been paid by the Revenue Commissioners to the employer in relation to those employees shall be refunded by the employer to the Revenue Commissioners.

(c) Subsections (12), (13), (14) (apart from paragraph (b) thereof), (15) and (16) shall apply in relation to an amount that is required to be refunded by the employer in accordance with paragraph (b) as they apply in relation to an amount that is required to be refunded by an employer in accordance with subsection (11).

(7) Subject to subsections (8) and (9), where this section applies to an employer, then, following the notification by the employer of the payment of emoluments to a qualifying employee in an income tax month in the qualifying period in accordance with Regulation 10 of the Regulations, the following provisions shall apply where such notification was received by the Revenue Commissioners no later than the return date (within the meaning of section 983 of the Act) for the income tax month:

(a) the Revenue Commissioners shall pay to the employer in relation to the qualifying employee the amount (in this section referred to as a ‘wage subsidy payment’) specified in subsection (8);

(b) the payment referred to in paragraph (a) shall be made by way of bank transfer to the bank account of the employer, the details of which have been provided in accordance with subsection (3)(c);

(c) where, under paragraph (a), two or more payments are required to be made by the Revenue Commissioners to the employer in respect of an income tax month, whether in relation to one or more than one qualifying employee, all such payments under paragraph (a) may be aggregated by the Revenue Commissioners for the purposes of compliance with paragraph (b);

(d) a payment or aggregate payment required under this subsection to be made by the Revenue Commissioners to the employer in respect of an income tax month in relation to a qualifying employee or qualifying employees shall be made by the Revenue Commissioners as soon as may be practicable after the return date (within the meaning of section 983 of the Act) for the income tax month concerned;

(e) as respects the payment of the aforesaid emoluments to the qualifying employee, the employer shall treat the qualifying employee as falling within such class of Pay-Related Social Insurance for the purposes of the employer’s obligations under the Social Welfare Acts and the employer’s reporting obligations specified in Chapter 4 of Part 42 of the Act and the Regulations as the employer determines to be appropriate having regard to guidelines published by the Revenue Commissioners under subsection (20)(b);

(f) the employer shall comply with any other direction of the Revenue Commissioners that, by virtue of this paragraph, they may reasonably give regarding the payment to the employer of a wage subsidy payment in relation to a qualifying employee in accordance with paragraph (a), being a direction that facilitates the effective administration of this section.

(8) Subject to subsections (9) and (21)(c), the wage subsidy payment payable by the Revenue Commissioners to an employer in relation to a qualifying employee shall be—

(a) in the case where the employer pays the qualifying employee gross pay of at least €151.50 per week but not more than €202.99 per week, the sum of €151.50 per contribution week,

(b) in the case where the employer pays the qualifying employee gross pay of not less than €203 per week but not more than €1,462 per week, the sum of €203 per contribution week,

and, accordingly, neither in a case—

(i) in which the employer pays gross pay of less than €151.50 per week to a qualifying employee, nor

(ii) in which the employer pays gross pay of more than €1,462 per week to a qualifying employee,

shall there be paid by the Revenue Commissioners any wage subsidy payment to the employer in relation to that qualifying employee.

(9) Where, following the notification by an employer of the payment of emoluments to any qualifying employee in the period from 1 July 2020 to 31 August 2020 in accordance with Regulation 10 of the Regulations, the employer would be entitled under section 28 to be paid a temporary wage subsidy (within the meaning of that section) by the Revenue Commissioners in relation to that qualifying employee, the employer shall not be entitled under this section to be paid a wage subsidy payment by the Revenue Commissioners in relation to that qualifying employee.

(10) Notwithstanding any obligation imposed on the Revenue Commissioners under section 851A of the Act or any other enactment in relation to the confidentiality of taxpayer information (within the meaning of that section), the names and addresses of all employers to whom a wage subsidy payment has been paid by Revenue Commissioners for an income tax month shall be published on the website of the Revenue Commissioners—

(a) in a case in which wage subsidy payments are so paid in any of the income tax months July to December 2020, as soon as may be practicable in January 2021, and

(b) in a case in which wage subsidy payments are so paid subsequent to the income tax month December 2020, as soon as may be practicable following the end of each relevant period (that is to say, firstly, the period beginning on 1 January 2020 and ending on 31 March 2020 and, then, each subsequent period of 3 months thereafter) in which wage subsidy payments were so paid.

(11) Where the Revenue Commissioners have paid to an employer a wage subsidy payment in relation to an employee in accordance with subsection (7)(a) and it transpires that the employer was not entitled to receive such payment in relation to the employee, the wage subsidy payment so paid to the employer shall be refunded by the employer to the Revenue Commissioners.

(12) An amount that is required to be refunded by an employer to the Revenue Commissioners in accordance with subsection (11) (in this section referred to as ‘relevant tax’) shall be treated as if it were income tax due and payable by the employer from the date the wage subsidy payment referred to in that subsection had been paid by the Revenue Commissioners to the employer and shall be so due and payable without the making of an assessment.

(13) Notwithstanding subsection (12), where an officer of the Revenue Commissioners is satisfied there is an amount of relevant tax due to be paid by an employer which has not been paid, that officer may make an assessment on the employer to the best of the officer’s judgment, and any amount of relevant tax due under an assessment so made shall be due and payable from the date the wage subsidy payment referred to in subsection (11) had been paid by the Revenue Commissioners to the employer.

(14) The provisions of the Income Tax Acts relating to—

(a) assessments to income tax,

(b) appeals against such assessments (including the rehearing of appeals and the statement of a case for the opinion of the High Court), and

(c) the collection and recovery of income tax,

shall, in so far as they are applicable, apply to the assessment, collection and recovery of relevant tax.

(15) Any amount of relevant tax payable in accordance with this section shall carry interest at the rate of 0.0219 per cent for each day or part of a day from the date when the amount is due and payable.

(16) Subsections (3) to (5) of section 1080 of the Act shall apply in relation to interest payable under subsection (15) as they apply in relation to interest payable under section 1080 of the Act.

(17) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person—

(a) knowingly or wilfully delivers any incorrect return or statement, or knowingly or wilfully furnishes any incorrect information, in connection with the operation of subsection (2) or the eligibility for a wage subsidy payment in relation to any individual, or

(b) knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return or statement, or knowingly or wilfully furnish any incorrect information, in connection with the operation of subsection (2) or the eligibility for a wage subsidy payment in relation to any individual,

and the provisions of subsections (3) to (10) of section 1078, and section 1079, of the Act shall, with any necessary modifications, apply for the purposes of this subsection as they apply for the purposes of offences in relation to tax within the meaning of section 1078 of the Act.

(18) Notwithstanding any obligation imposed on the Revenue Commissioners under section 851A of the Act or any other enactment in relation to the confidentiality of taxpayer information (within the meaning of that section) or any obligation imposed on the Minister for Employment Affairs and Social Protection under the Social Welfare Acts or any other enactment in relation to the confidentiality of information relating to employers and insured persons or other persons entitled to benefits or assistance under those Acts, information relevant to the effective operation of this section may be exchanged between the Minister for Employment Affairs and Social Protection and the Revenue Commissioners.

(19) The administration of this section shall be under the care and management of the Revenue Commissioners and section 849 of the Act shall apply for this purpose with any necessary modifications as it applies in relation to tax within the meaning of that section.

(20) The Revenue Commissioners shall prepare and publish guidelines with respect to—

(a) the matters that are considered by them to be matters to which regard shall be had in determining whether a reduction, as referred to in subsection (2), will occur by reason of Covid-19 and the disruption that is being caused thereby to commerce, and

(b) the matters to which an employer shall have regard in determining the appropriate class of Pay-Related Social Insurance to be operated by an employer in relation to a qualifying employee for the purposes of compliance by the employer with subsection (7)(e).

(21) Where the Minister makes a determination of the kind lastly referred to in section 28A(6), the Minister shall, as he or she deems fit and necessary—

(a) make an order that the day referred to in the definition of ‘qualifying period’ in subsection (1) as the day on which the period there referred to shall expire shall be such day as is later than 31 March 2021 (but not later than 30 June 2021) as the Minister considers appropriate and specifies in the order,

(b) make an order that the percentage reduction specified in clauses (I) to (III) of subsection (2)(a)(i) shall be such percentage reduction, greater or lower than the percentage reduction specified in those clauses, as the Minister—

(i) considers necessary to—

(I) fulfil, better, the objectives specified in section 28A(1), or

(II) facilitate the furtherance of any of the purposes specified in section 28A(2),

and

(ii) specifies in the order,

or

(c) make an order providing that an amount, being such amount as the Minister—

(i) considers necessary to—

(I) fulfil, better, the objectives specified in section 28A(1), or

(II) facilitate the furtherance of any of the purposes specified in section 28A(2),

and

(ii) specifies in the order,

shall stand substituted for an amount for the time being specified in subsection (8) (and which amount, so specified, is greater or lower, as the Minister considers necessary, than the amount concerned for the time being specified in subsection (8)) and references in this paragraph to the amount concerned for the time being specified in the foregoing subsection are references to the amount concerned for the time being specified in that subsection, as enacted, or in consequence of a previous order that has been made under this paragraph.

(22) Where an order under paragraph (a), (b) or (c) of subsection (21) is proposed to be made, a draft of the order shall be laid before Dáil Éireann and the order shall not be made unless a resolution approving of the draft has been passed by that House.

(23) (a) In so far as it relates to income tax, this section shall be construed together with the Income Tax Acts.

(b) Subsection (7)(e), in so far as it relates to pay related social insurance, shall be construed together with the Social Welfare Acts.

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Inserted by FPCovidNo2 s(2)(2). Comes into operation on and from 1 July 2020