1086A Publication of names and details of tax defaulters

Summary

This section requires the Revenue Commissioners to compile and publish lists of certain tax defaulters. Such lists are to be compiled on a quarterly basis and published in Iris Oifigiúil within 3 months of the end of each particular quarter. Thereafter, lists of defaulters may also be publicised or reproduced by the Revenue Commissioners in any manner they consider appropriate. The new publication provisions amend the criteria for publication and clarify what details are to be published.

Section 1086A provides for the publication of settlements where refunds have been incorrectly claimed, removes from publication all settlements where the tax underpayment or refund incorrectly claimed is less than €50,000, permits the inclusion of a late filing surcharge in details to be published, removes the requirement for a settlement to contain interest to be publishable, and removes from publication any part of a settlement that does not attract a penalty.

Details

Section 1086A TCA provides for the publication of the names and details of certain tax defaulters.

(1) Subsection (1) defines terms for the section, including “qualifying disclosure”, “the Acts” and “tax”.

(2) Subsection (2) imposes an obligation on the Revenue Commissioners to prepare a list of certain people in certain circumstances. It also defines “settlement amount”. The term “settlement amount” means the total amount of a claim accepted by the Revenue Commissioners for all tax liabilities, including in cases involving a repayment of tax refunded or the restriction of a refund claimed, the amount of the repayment or the restriction, any interest or late filing surcharge on those liabilities, if applicable, and any type of a fine or penalty under the Acts in relation to the tax. The settlement amount includes all elements of the outcome of an intervention. The phrase “settlement amount” replaces what was previously referred to in section 1086 as the “specified sum”.

(2)(a) Subsection (2)(a) requires cases where a fine or penalty is imposed by a court under any of “the Acts” during the period to which the list under compilation refers to be included.

(2)(b) Subsection (2)(b) refers to cases where a fine or penalty in respect of a tax offence is imposed by a court otherwise than under “the Acts” during that period.

(2)(c) Subsection (2)(c) refers to all cases where, instead of initiating proceedings for the recovery of any fine or penalty of the kind mentioned above, the Revenue Commissioners have accepted or undertaken to accept the settlement amount, in settlement of all liabilities involving tax, interest and late filing surcharge, if applicable, and any penalties under the Acts in respect of the taxes covered by the section. Interest is not a required element in a settlement amount but if it arises, it is included in the settlement amount. The settlement amount also includes the late filing surcharge, where applicable. Both fixed and tax geared penalties also form part of the settlement amount.

(2)(d) Subsection (2)(d) refers to cases where a settlement has been agreed between a taxpayer and the Revenue Commissioners for a settlement amount even after court proceedings have been initiated and whether or not a fine or penalty has been imposed by the court. This was previously provided for in section 1086(2)(d) but, as above, has been amended to include in the settlement amount any amounts relating to the restriction of a repayment, and to clarify that where interest or a late filing surcharge apply to the settlement, although not a requirement, they form part of the settlement amount. Likewise, any fixed or tax geared penalties relating to the tax are also included in the settlement amount.

(3) Subsection (3) provides that any obligation to secrecy imposed on the Revenue Commissioners by “the Acts” or the Official Secrets Act, 1963, is to be ignored for thepurposes of this section and the Revenue Commissioners are authorised to arrange for publication of these lists in Iris Oifigiúil within three months of the end of the period for which they are compiled. In addition, following publication in Iris Oifigiúil, the Commissioners may publicise and/or reproduce the lists (in whole or in part) in any other manner, form or format they consider to be appropriate (for example, reproducing the list on the Revenue website).

(4) Subsection (4) explains that where the Revenue Commissioners accept or agree to accept a settlement amount as the full amount of their claim then it will be deemed that there has been an agreement as referred to in subsection (2)(c) or (d). This deemed agreement will be treated as having been made in the relevant period in which the settlement amount is accepted or in which Revenue agrees to accept that amount.

(5) Subsection (5) provides that where the Revenue Commissioners accepted or undertook to accept a settlement amount under subsection (2)(c) or (2)(d) and a payment is not made, the settlement is to be included in the list to be published. This includes situations where the settlement sum comprises an amount relating to a qualifying disclosure made by the taxpayer. The portion of the settlement amount that does not relate to a qualifying disclosure will be included in the list under subsection (2).

(6)(a) Subsection (6)(a) introduces the term “publication amount”, which denotes the amount of a settlement that may be published (subject to the exceptions provided for in the section). It is the “settlement amount” less any amount in respect of which the Revenue Commissioners are satisfied that, before any investigation or inquiry had been started, the person had voluntarily furnished a qualifying disclosure, and any amount of tax that does not attract a fine or other monetary penalty. This includes amounts previously categorised as a technical adjustment or innocent error under Revenue’s Code of Practice for Revenue Audits and other Compliance Interventions.

(6)(b) Subsection (6)(b) sets out the details that are to be included on the list to be published.

It provides that the list should set out the name (including trading name or previous name by which the defaulter is known), address and occupation or description of every defaulter, the amount of tax, surcharge, interest and fine or other monetary penalty included in the publication amount, and at the discretion of the Revenue Commissioners, certain additional particulars including particulars of the matter giving rise to the fine or penalty or to the settlement, such as in a case where a court fine has been imposed, a summary description of the act, omission or offence concerned and this description may also include details of the circumstances surrounding it. In a settlement case, a summary description of the matter giving rise to the liability and this description may also include details of the circumstances surrounding it. Particulars of any interest, fine, penalty or sanction involved in a case, whether imposed by a court or included as a constituent amount in a settlement. Particulars of any amount of tax that has been determined, whether or not paid, by reference to which a court had determined a penalty under section 1077B.

(7) Subsection (7) explains that in a settlement case to which subsection (5) applies (that is, where the defaulter fails to pay the specified sum or adjusted specified sum, as the case may be) the published particulars shall include the fact that the defaulter failed to pay the sum.

(8) Subsection (8) sets out exceptions to publication in cases of Court-determined penalties. Such cases are excluded from publication where in the case of a person who had made a return, the amount of the penalty determined by the court does not exceed 15% of thedifference between the amount of tax payable on the basis of the incorrect return, statement, declaration or account and the amount so payable if the return, statement etc. had been correct (see section 1077E(11) or section 1077F(3)), and in the case of a person who had failed to make a return, the amount of the penalty determined by the court does not exceed 15% of the difference between the amount of tax paid before the start of any Revenue enquiry or investigation and the amount that would have been payable on the basis of a correct return etc. for the period (see section 1077E(12) or section 1077F(5)). (Similar rules apply in relation to Court-determined penalties in respect of VAT, Stamp Duty and excise defaults). The total amount of tax in respect of which the penalty is determined does not exceed the relevant amount referred to in subsection (10)(a) (€50,000), or the defaulter has made a qualifying disclosure.

(9) Subsection (9) sets out the exceptions to publication in cases where the Revenue Commissioners have accepted or undertaken to accept a settlement amount under section 1086A(2)(c) or (d). These are cases where the amount of tax included in the publication amount, as defined, does not exceed the relevant amount referred to in subsection (10)(a) (€50,000), or the fine or penalty involved does not exceed 15 per cent of the tax included in the publication amount.

(10) Subsection (10) provides for the indexation of the publication threshold. It provides that the Minister may, from time to time, by order provide a new publication limit to take effect from 1 January of the year in which the order is made. Each new limit is to be arrived at by indexing the previous limit in accordance with the consumer price index and rounding up to the nearest €1,000. Each new limit is required to take effect in respect of settlements that include only liabilities which arise on or after the said 1 January and periods that commence on or after that date.

(11) Subsection (11) provides that any list complied in accordance with subsection (2) will be kept on the Revenue website for no longer than two years from the publication of the list in Iris Oifigiúil.

Relevant Date: Finance Act 2021