600F. Certificates of qualification

(1) (a) Subject to subsection (2), a company (in this section referred to as the ‘applicant company’) that is seeking to raise investments from qualifying investors or qualifying partnerships may apply to the Revenue Commissioners for the purpose of obtaining—

(i) a certificate of going concern, and

(ii) a certificate of commercial innovation.

(b) An application under paragraph (a) shall include—

(i) a business plan in respect of which the company is seeking investment,

(ii) details of each of the shareholders of the company including each shareholder’s name and address and shareholdings or ownership interests, as the case may be, in linked businesses or partner businesses, and

(iii) such other information and explanations as may be requested by the Revenue Commissioners for the purposes of making a determination as to whether the company complies with the conditions specified in subsection (2).

(2) A company shall not make an application under subsection (1) unless the following conditions are satisfied:

(a) the applicant company—

(i) is incorporated in the State, another EEA state or the United Kingdom,

(ii) is tax resident in the State, another EEA state or the United Kingdom and carries on, or intends to carry on, relevant trading activities from a fixed place of business in the State,

(iii) holds a tax clearance certificate within the meaning of section 1095,

(iv) is a company which—

(I) does not control (or together with any person connected with the company does not control) another company other than a qualifying subsidiary, and

(II) is not under the control of another company (or of another company and any person connected with that other company), unless such control is exercised by the National Asset Management Agency, or by a company referred to in section 616(1)(g),

and no arrangements are in existence by virtue of which the applicant company would fall within clause (I) or (II) in the period of 3 years following the issue of a certificate of commercial innovation,

(v) is a company—

(I) which exists wholly for the purpose of carrying on relevant trading activities, or

(II) whose business consists, or will consist, wholly of—

(A) the holding of shares or securities of, or the making of loans to, one or more qualifying subsidiaries of the company, or

(B) both the holding of such shares or securities or the making of such loans and the carrying on of relevant trading activities where relevant trading activities are carried on from a fixed place of business in the State,

and where a company raises any amount through the issue of eligible shares for the purposes of raising money for relevant trading activities which are being carried on by a qualifying subsidiary or which such a qualifying subsidiary intends to carry on, the amount so raised shall be used for the purpose of acquiring eligible shares in the qualifying subsidiary and for no other purpose,

(vi) is a company which is an innovative enterprise, or one or more than one qualifying subsidiary of the company is an innovative enterprise, and

(vii) is—

(I) a company that it is reasonable to consider intends to, and has sufficient expertise and experience, to implement the business plan, or

(II) a company referred to in paragraph (v)(II) and it is reasonable to consider that the company and the qualifying subsidiary referred to in paragraph (v)(II) intend to, and have sufficient expertise and experience, to implement their respective business plan;

(b) each company that is a member of the relief group of which the applicant company is a member—

(i) is unlisted, and no arrangements are in existence in relation to the company becoming a listed company,

(ii) is not subject to an outstanding recovery order following a previous decision of the European Commission that declared an aid illegal and incompatible with the internal market, and

(iii) has all of its issued shares fully paid up;

(c) (i) no company that is a member of the relief group of which the applicant company is a member has been registered, or where any company that is a member of the relief group was formed by way of acquisition or merger no company that was party to the acquisition or merger has been registered, more than 7 years prior to the date on which an application under subsection (1)(a) is made,

(ii) where the acquisition or merger for the purposes of subparagraph (i) was with a member of the relief group other than a company, the date it commenced carrying on the enterprise is not more than 7 years prior to the date on which an application under subsection (1)(a) is made, and

(iii) where a member of the relief group is an enterprise other than a company, the date it commenced carrying on the enterprise is not more than 7 years prior to the date on which an application under subsection (1)(a) is made;

(d) the relief group of which the applicant company is a member—

(i) is an SME, and

(ii) is not an undertaking in difficulty.

(3) (a) Subject to paragraphs (b) and (c), the Revenue Commissioners shall issue—

(i) a certificate (in this Chapter referred to as a ‘certificate of going concern’) to a company where the company demonstrates to the satisfaction of the Revenue Commissioners that the relief group of which the applicant company is a member satisfies the conditions specified in subsection (2)(d), or

(ii) a determination that the applicant company has not demonstrated to the satisfaction of the Revenue Commissioners that the relief group of which the applicant company is a member satisfies the condition specified in subparagraph (i) or (ii), as the case may be, of subsection (2)(d) and the reasons for the determination.

(b) The Revenue Commissioners may issue to the applicant company a certificate, or renewal of a certificate, of going concern, as the case may be, having taken account of any recommendations or report which Enterprise Ireland shall make to the Revenue Commissioners following such consultation by them with Enterprise Ireland as the Revenue Commissioners consider appropriate for those purposes (including by the provision to Enterprise Ireland of such information in relation to the application as is necessary for the purposes of such consultation).

(c) The Revenue Commissioners shall issue a determination and shall not issue a certificate, or a renewal of a certificate, of going concern, as the case may be, if they have reason to believe that any condition specified in subparagraphs (i) to (v) of paragraph (a), or paragraphs (b) and (c) of subsection (2) is not, or, in the case of the renewal of a certificate, is no longer, satisfied by the relief group of which the applicant company is a member, or any company that is a member of the relief group, as the case may be.

(d) A person aggrieved by a determination issued under paragraph (a)(ii) or (c), as the case may be, may appeal the determination to the Appeal Commissioners, in accordance with section 949I, within the period of 30 days after the date of the notice of that determination.

(e) Where a company holds a valid certificate of commercial innovation but the certificate of going concern has expired or is about to expire, the company may apply to the Revenue Commissioners for a renewal of its certificate of going concern and the provisions of this section shall, with any necessary modifications, apply to an application for a renewal of a certificate of going concern as those provisions apply to an application for a certificate of going concern.

(f) Subject to section 600P, a certificate of going concern shall be valid until the later of—

(i) the earlier of—

(I) the day which is 3 years from the date of registration of the first so registered company that is a member of the relief group,

(II) where any company that is a member of the relief group was formed by way of acquisition or merger, the day which is 3 years from the date of registration of any company that was party to the acquisition or merger, or

(III) in the case of a member, other than a company, the day which is 3 years from the date it commenced carrying on the enterprise which is required to be included in the relief group,

or

(ii) the earlier of—

(I) the day that is the later of—

(A) the last day of the accounting period, of the company to which the certificate was issued, in which that certificate was issued, or

(B) 9 months from the day on which the certificate was issued to the company in accordance with subclause (A), where that day is later than the day referred to in subclause (A),

or

(II) where the certificate was renewed in accordance with paragraph (e), the day on which the certificate of commercial innovation referred to in that paragraph ceases to be valid.

(4) (a) Subject to paragraphs (b) and (c), the Revenue Commissioners shall issue—

(i) a certificate (in this Chapter referred to as a ‘certificate of commercial innovation’) to a company where the company demonstrates to the satisfaction of the Revenue Commissioners that it satisfies the conditions specified in subparagraphs (vi) and (vii) of subsection (2)(a), or

(ii) a determination that the applicant company has not demonstrated to the satisfaction of the Revenue Commissioners that it satisfies the conditions specified in subparagraphs (vi) and (vii) of subsection (2)(a) and the reasons for the determination.

(b) The Revenue Commissioners may issue to the applicant company a certificate of commercial innovation, having taken account of any recommendations or report which Enterprise Ireland shall make to the Revenue Commissioners following such consultation by them with Enterprise Ireland as the Revenue Commissioners consider appropriate for those purposes (including by the provision to Enterprise Ireland of such information in relation to the application as is necessary for the purposes of such consultation).

(c) The Revenue Commissioners shall not issue a certificate of commercial innovation if they have reason to believe that any condition specified in paragraphs (a) to (d) of subsection (2) is not satisfied by the relief group of which the applicant company is a member, or any company that is a member of that relief group, as the case may be.

(d) A person aggrieved by a determination issued under paragraph (a)(ii) may appeal the determination to the Appeal Commissioners, in accordance with section 949I, within the period of 30 days after the date of the notice of that determination.

(e) Subject to section 600P, a certificate of commercial innovation shall be valid until the date that is the seventh anniversary of the earliest of—

(i) the date of the registration of any company that is a member of the relief group of which the applicant company is a member,

(ii) the date that is the earlier of—

(I) the registration of any company that was party to the acquisition or merger, where any company that is a member of the relief group of which the applicant company is a member was formed by way of acquisition or merger, or

(II) the commencement of the carrying on of an enterprise, where the acquisition or merger referred to in clause (I) was with a party other than a company, or

(iii) the date of the commencement of the carrying on of an enterprise, where a member of the relief group is an enterprise other than a company.

(5) (a) Subject to paragraph (c), Enterprise Ireland may consult with any person who in the opinion of Enterprise Ireland may be of assistance to it in making any recommendations or report referred to in subsection (3)(b) or (4)(b), as the case may be, or section 600P(4)(d)(ii).

(b) Before disclosing information to any person under paragraph (a), Enterprise Ireland shall give notice in writing to the Revenue Commissioners of—

(i) the purposes of the consultation,

(ii) the intention to disclose information,

(iii) the information that is intended to be disclosed, and

(iv) the identity of the person whom Enterprise Ireland intends to consult.

(c) (i) 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 (d), the Revenue Commissioners may approve the disclosure by Enterprise Ireland of the information referred to in paragraph (b) to the person referred to in paragraph (a).

(ii) Enterprise Ireland shall not disclose the information referred to in paragraph (b) to the person referred to in paragraph (a) without obtaining the approval specified in paragraph (d).

(d) Before providing an approval referred to in paragraph (c), the Revenue Commissioners shall give notice in writing to the company of—

(i) the purposes of the consultation,

(ii) the intention to disclose information,

(iii) the information that is intended to be disclosed, and

(iv) the identity of the person whom Enterprise Ireland intends to consult,

and shall give the company a period of 30 days after the date of the notice to show to the satisfaction of the Revenue Commissioners that the Revenue Commissioners providing the approval referred to in paragraph (c) could prejudice the company’s business.

(e) Where, on the expiry of the period referred to in paragraph (d), it is not shown to the satisfaction of the Revenue Commissioners that the provision of the approval referred to in paragraph (c) could prejudice the company’s business, the Revenue Commissioners may provide that approval where the Revenue Commissioners—

(i) give notice in writing to the company of the decision to provide the approval referred to in paragraph (c), and

(ii) allow the company a period of 30 days after the date of the notice to appeal the decision to the Appeal Commissioners before providing the approval referred to in paragraph (c).

(f) A company aggrieved by a decision made under paragraph (e) 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.

(6) Certificates of qualification shall include the following information:

(a) the type of certificate issued either in accordance with subsection (3)(a) or (4)(a), as the case may be;

(b) the name, address and company registration number, or equivalent in the case of a company incorporated outside of the State, of the qualifying company to which the certificate was issued;

(c) the date of issue of the certificate;

(d) the period of validity of the certificate;

(e) a unique, sequential certificate identification number assigned to the certificate by the Revenue Commissioners.

(7) (a) The Revenue Commissioners shall establish and maintain a register of companies to which certificates of qualification have been issued (in this subsection referred to as the ‘register’).

(b) The Revenue Commissioners shall publish the register on a website maintained by them or on their behalf.

(c) The register shall contain only the information specified in subsection (6) in respect of the certificates of qualification, and the date of withdrawal in a case where the certificates of qualification have been withdrawn under section 600P.