891I. Implementation of Article 1(8) of Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to platform operators

(1) This section provides for the collection and reporting of certain information by reporting platform operators in respect of relevant activities undertaken by reportable sellers on their platforms.

(2) In this section—

“AML Directive” means Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015¹ on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EU, as amended by Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018²;

“authorised DAC officer” means an officer of the Revenue Commissioners authorised under subsection (12) whose authorisation under that subsection includes authorisation for the purpose of exercising the powers set out in subsection (20);

“beneficial owner” has the same meaning as in the AML Directive;

“business registration number” means a unique business identification number issued by a Member State, or a functional equivalent in the absence of a business identification number;

“consideration”, “entity”, “excluded platform operator”, “excluded seller”, “financial account identifier”, “goods”, “platform”, “platform operator”, “primary address”, “property listing”, “qualified non-union platform operator”, “relevant activity”, “reportable period”, “reportable seller”, “reporting platform operator”, “seller”, “TIN”, and “VAT identification number” have the meanings respectively given to them by Section I of Annex V to the Directive;

“designated person” has the same meaning as in Part 4 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;

“Directive” means Council Directive 2011/16/EU of 15 February 2011³ as amended by Council Directive 2014/107/EU of 9 December 2014⁴, Council Directive (EU) 2015/2376 of 8 December 2015⁵, Council Directive (EU) 2016/881 of 25 May 2016⁶, Council Directive (EU) 2016/2258 of 6 December 2016⁷, Council Directive (EU) 2018/822 of 25 May 2018⁸, Council Directive (EU) 2020/876 of 24 June 2020⁹ and Council Directive (EU) 2021/514 of 22 March 2021¹⁰;

“Platform Operator ID” means a unique individual identification number assigned to a platform operator by the Revenue Commissioners;

“relevant information” has the meaning given to it by subsection (7)(a).

(3)(a) Subject to paragraph (b), a platform operator that—

(i) is resident in the State for tax purposes,

(ii) is incorporated in the State,

(iii) has a place of management in the State, or

(iv) has a permanent establishment in the State and is not a qualified non-union platform operator,

shall register with the Revenue Commissioners as a platform operator for the purposes of this section.

(b) A platform operator that satisfies one or more of the conditions in subparagraphs (i) to (iv) of paragraph (a) and also satisfies those conditions in respect of another Member State shall not register with the Revenue Commissioners if it elects to register as a platform operator for the purposes of the Directive in that other Member State and notifies that election in writing to the Revenue Commissioners.

(c) Subject to paragraph (d), a platform operator—

(i) other than one that is required to register with—

(I) the Revenue Commissioners under paragraph (a), or

(II) the competent authority of another Member State, under provisions similar to paragraph (a) in force in that Member State, as a platform operator for the purposes of the Directive,

and

(ii) that facilitates the carrying out of a relevant activity in a Member State, including the State—

(I) by reportable sellers, or

(II) involving the rental of immovable property,

shall register with the Revenue Commissioners as a platform operator for the purposes of this section and the Revenue Commissioners shall assign a Platform Operator ID to such platform operator.

(d) Paragraph (c) shall not apply to a platform operator that has registered with the competent authority of another Member State, under provisions similar to paragraph (c) in force in that Member State, as a platform operator for the purposes of the Directive and has been assigned the equivalent of a Platform Operator ID by that competent authority and such Platform Operator ID has not been revoked.

(e) Subject to paragraph (f), where a platform operator, registered under paragraph (c), does not comply with its obligations under this section or regulations made under this section, the Revenue Commissioners shall revoke that platform operator’s Platform Operator ID.

(f) The Platform Operator ID shall not be revoked under paragraph (e) before—

(i) the Revenue Commissioners have issued 2 reminders in writing to the platform operator of the obligations imposed on that platform operator under this section, and

(ii) the expiration of 30 days from the date of the second such reminder referred to in subparagraph (i).

(g) Where a platform operator’s Platform Operator ID has been revoked under paragraph (e), the Platform Operator ID shall not be reinstated until the platform operator demonstrates, by way of documentary evidence to the satisfaction of the Revenue Commissioners, and provides the Revenue Commissioners with a written assurance, that it will comply with the obligations imposed under this section and the regulations made under this section.

(h) An excluded platform operator registered in the State shall make a return, by 31 January of the year immediately following the end of the reportable period, to the Revenue Commissioners confirming that the excluded platform operator has not facilitated any relevant activity in the reportable period and provide such particulars as are necessary to demonstrate that the excluded platform operator is not a reporting platform operator to which subparagraphs (1) to (3) of paragraph A of Section III of Annex V to the Directive apply.

(4) A reporting platform operator registered in the State for the purposes of this section shall, by 31 January of the year immediately following the end of the reportable period—

(a) make a return under this section to the Revenue Commissioners, and

(b) provide to a reportable seller a copy of the information contained in that return in respect of such reportable seller.

(5) A return made under subsection (4) shall contain—

(a) the following details in respect of a reporting platform operator:

(i) the name of the reporting platform operator;

(ii) the registered office address of the reporting platform operator;

(iii) the TIN of the reporting platform operator;

(iv) the Platform Operator ID, where one has been assigned by the Revenue Commissioners;

(v) the business name of each platform in respect of which the reporting platform operator is reporting,

(b) the following details in respect of reportable sellers who are individuals:

(i) the first name and last name of each reportable seller;

(ii) the primary address of each reportable seller;

(iii) the TIN issued to each reportable seller, and where a reportable seller has a TIN issued by more than one Member State, the Member State of issuance of each TIN, or in the absence of a TIN the place of birth of such reportable seller;

(iv) the VAT identification number of each reportable seller, where available;

(v) the date of birth of each reportable seller,

(c) the following details in respect of reportable sellers who are not individuals:

(i) the legal name of each reportable seller;

(ii) the primary address of each reportable seller;

(iii) where relevant activities are carried on through a permanent establishment in any Member State, details for each reportable seller of each Member State where such a permanent establishment is located, where available;

(iv) any TIN issued to each reportable seller, and where a reportable seller has a TIN issued by more than one Member State, the Member State of issuance of each TIN;

(v) the VAT identification number of each reportable seller, where available;

(vi) the business registration number of each reportable seller,

(d) the following details in respect of all reportable sellers:

(i) the total consideration paid or credited to each reportable seller during each quarter of the reportable period and the number of relevant activities in respect of which the consideration was paid or credited;

(ii) any fees, commissions or taxes withheld or charged by the reporting platform operator with respect to each reportable seller during each quarter of the reportable period;

(iii) the financial account identifier of each reportable seller, insofar as—

(I) the financial account identifier is available to the platform operator, and

(II) the competent authority of each Member State in which the reportable seller is resident (as determined pursuant to paragraph D of Section II of Annex V to the Directive) has not notified the Revenue Commissioners that the competent authority does not intend to use the financial account identifier for the purpose of a return made by a reporting platform operator;

(iv) where different from the name of a reportable seller, the name of the holder of the financial account to which the consideration is paid or credited, to the extent available to the reporting platform operator, as well as any other financial identification information available to the reporting platform operator with respect to that account holder;

(v) each Member State in which each reportable seller is resident, as determined pursuant to paragraph D of Section II of Annex V to the Directive,

(e) where the relevant activity of a reportable seller involves the rental of immovable property, in addition to the information specified in paragraphs (b) to (d), the following information in respect of each reportable seller:

(i) the address of each property listing;

(ii) the unique identifier, or identifiers, allocated under the Registration of Title Act 1964 to the land of each property listing, if available, or its equivalent under the law of the Member State where it is located, where available;

(iii) the total consideration paid or credited during each quarter of the reportable period and the number of relevant activities provided with respect to each property listing;

(iv) where available, the number of days each property listing was rented during the reportable period and the type of each property listing,

and

(f) such other information as may be prescribed in regulations made by the Revenue Commissioners under subsection (9).

(6) A reporting platform operator shall put in place such procedures as may be prescribed in regulations under subsection (10)(c) to identify when a seller becomes a reportable seller.

(7) (a) A seller, that is not an excluded seller, shall provide to the reporting platform operator such information as is necessary for that reporting platform operator to comply with the reporting obligations imposed under subsection (5) (referred to in this subsection as the ‘relevant information’).

(b) Where a reportable seller does not provide the relevant information to the reporting platform operator, the reporting platform operator, on the day immediately following the expiration of the period referred to in paragraph (c)(ii) (referred to in this paragraph as the ‘first-mentioned date’), shall—

(i) where the reporting platform operator processes payments of consideration on behalf of the reportable seller—

(I) withhold payment of any consideration due to the reportable seller,

(II) prevent the reportable seller from connecting with other users of the platform for the purpose of arranging relevant activities, and

(III) prevent the reportable seller from opening another account with that reporting platform operator,

until such time as the relevant information has been provided, and if the relevant information is not provided by the reportable seller to the reporting platform operator within 24 months of the first-mentioned date—

(A) pay any consideration referred to in subparagraph (i)(I) to the reportable seller,

(B) close the account of the reportable seller, and

(C) prevent the reportable seller from reopening the account, or from opening a new account with the reporting platform operator, until such time as the relevant information has been provided,

or

(ii) where the reporting platform operator does not process payments of consideration on behalf of the reportable seller—

(I) close the account of the reportable seller, and

(II) prevent the reportable seller from reopening the account, or from opening a new account with the reporting platform operator, until such time as the relevant information has been provided.

(c) A reporting platform operator shall not take any action referred to in paragraph (b) before—

(i) the reporting platform operator has issued 2 reminders in writing to the reportable seller following the initial request for relevant information, and

(ii) 60 days have passed from the date on which the second reminder referred to in subparagraph (i) has been issued.

(8) A reporting platform operator may, subject to such conditions relating to the appointment of a third party as may be prescribed in regulations made under this section, appoint a third party to carry out the duties and obligations imposed on it by this section.

(9) The Revenue Commissioners, with the consent of the Minister for Finance, may make regulations under this section with respect to the registration of platform operators with the Revenue Commissioners and the return by a reporting platform operator of information regarding relevant activities undertaken by reportable sellers on their platform.

(10) Regulations made under this section may (without prejudice to the generality of subsection (9)), in particular, include provision for—

(a) in respect of the requirements imposed on platform operators by subsection (3), the period within which such requirements shall be satisfied,

(b) in respect of a return required to be made under subsection (4)—

(i) the manner in which returns are to be made,

(ii) the currency in which the reporting platform operator is required to report, and

(iii) the rules for conversion of amounts, denominated other than in the currency referred to in subparagraph (ii), into that currency, for the purposes of making a return under subsection (4),

(c) in respect of the requirement imposed on the platform operators by subsection (6), the procedures to be put in place by a reporting platform operator for the purposes of identifying when a seller becomes a reportable seller,

(d) in respect of the requirement imposed on platform operators by subsection (7)(b), the procedures to be followed where, and the requirements to be satisfied before, a platform operator—

(i) withholds payment of consideration pursuant to subsection (7)(b)(i)(I),

(ii) prevents a reportable seller from connecting with other users of the platform pursuant to subsection (7)(b)(i)(II),

(iii) prevents a reportable seller from opening another account pursuant to subsection (7)(b)(i)(III),

(iv) pays any consideration pursuant to subsection (7)(b)(i)(A),

(v) closes the account of a reportable seller pursuant to subsection (7)(b)(i)(B) or (7)(b)(ii)(I), or

(vi) prevents the reportable seller from reopening an account, or from opening a new account, pursuant to subsection (7)(b)(i)(C) or (7)(b)(ii)(II),

(e) the records and documents that are required to be provided by the seller, that is not an excluded seller, to the reporting platform operator to enable the reporting platform operator to comply with the obligations imposed by paragraph (b), (c), (d) or (e), as the case may be, of subsection (5),

(f) the records and documents provided by the seller, that is not an excluded seller, to the reporting platform operator to enable the reporting platform operator to comply with the obligations imposed by paragraph (b), (c), (d) or (e), as the case may be, of subsection (5) that are required to be retained by the reporting platform operator,

(g) the appointment of a third party by a reporting platform operator to carry out the duties and obligations imposed on it by this section or regulations made under this section,

(h) in relation to any of the matters specified in paragraphs (a) to (g), the manner in which records shall be kept and the period for the retention of records so kept as provided for in subparagraph (1) of paragraph B of Section IV of Annex V to the Directive, and

(i) such supplemental and incidental matters as appear to the Revenue Commissioners to be necessary—

(i) to enable persons to fulfil their obligations under the regulations, or

(ii) for the general administration and implementation of the regulations.

(11) Every regulation made under this section shall be laid before Dâil Éireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by Dâil Éireann within the next 21 days on which Dâil Éireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(12) The Revenue Commissioners may authorise in writing any of their officers to exercise any powers to perform any acts or discharge any functions conferred by this section or regulations made under this section.

(13) Subject to subsection (14), a Revenue officer authorised under subsection (12) may at all reasonable times enter any premises or place of business of a reporting platform operator for the purposes of—

(a) enquiring into, and determining, whether information regarding a relevant activity—

(i) included in a return made under subsection (4) or regulations made under this section by the reporting platform operator was correct and complete, or

(ii) not included in such a return was correctly not so included,

or

(b) examining the procedures put in place by the reporting platform operator for the purposes of ensuring compliance with that platform operator’s obligations under this section or regulations made under this section.

(14) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (15) authorising the entry.

(15) A judge of the District Court, if satisfied on the sworn evidence of an authorised officer that—

(a) there are reasonable grounds for suspecting that any information or records, as the authorised officer may reasonably require for the purposes of his or her functions under this section, is or are held on any premises or part of any premises, and

(b) an authorised officer, in the performance of his or her functions under this section has been prevented from entering the premises or any part thereof,

may issue a warrant authorising the authorised officer, accompanied if necessary by other persons, at any time or times within 30 days from the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any of the functions conferred on the authorised officer under this section.

(16) (a) Subject to paragraph (b), section 898O shall apply to—

(i) a failure by a reporting platform operator to make a return required under subsection (4) or regulations made under this section, and

(ii) the making of an incorrect or incomplete return under subsection (4) or regulations made under this section,

as it applies to a failure to deliver a return or to the making of an incorrect or incomplete return referred to in section 898O.

(b) A penalty shall not be imposed on a platform operator under section 898O for the making of an incorrect or incomplete return referred to in paragraph (a)(ii) where—

(i) the platform operator makes an incomplete or incorrect return solely due to the failure by a reportable seller to provide the relevant information under subsection (7)(a), and

(ii) the platform operator has complied with the procedures set out in subsection (7)(b) and in any regulations made under subsection (10)(d) with respect to the failure by the reportable seller as referred to in subparagraph (i).

(c) A person who does not comply with—

(i) the requirements of a Revenue officer in the exercise or performance of the officer’s powers or duties under this section or regulations made under this section, or

(ii) any requirement of such regulations,

shall be liable to a penalty of €1,265.

(17) Where arrangements are entered into by any person and the main purpose or one of the main purposes of the arrangements, or any part of them, is the avoidance of any of the obligations imposed under this section or regulations made under this section, then this section and those regulations shall apply as if the arrangements, or that part of them, had not been entered into.

(18) A word or expression which is used in this section or in regulations made under this section and which is also used in the Directive has, unless the context otherwise requires, the same meaning in this section or in those regulations as it has in the Directive.

(19) Sections 888 and 890 shall not apply to a reporting platform operator where that reporting platform operator has fulfilled the obligations imposed under this section and regulations made under this section.

(20) (a) Where an enquiry under this section is in respect of a return—

(i) that contains, or that an authorised DAC officer believes should contain, information referred to in subsection (5)(d)(iv), or

(ii) in respect of which the authorised DAC officer believes the reportable seller is not the beneficial owner of the consideration paid,

then such authorised DAC officer shall also have access to the mechanisms, procedures, documents and information referred to in—

(I) Articles 13, 30, 31, 32a and 40 of the AML Directive, and

(II) any provisions of the law of the State transposing the said Articles 13, 30, 31, 32a and 40.

(b) For the purposes of an enquiry referred to in paragraph (a), an authorised DAC officer, in particular—

(i) shall have access to the Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies, the Central Register of Beneficial Ownership of Irish Collective Asset-management Vehicles, Credit Unions and Unit Trusts, the Central Register of Beneficial Ownership of Trusts and the Central Mechanism of Ownership of Bank and Payment Accounts and Safe-Deposit Boxes, and

(ii) may, by notice in writing, require a designated person to deliver to the officer, within a period specified in the notice, such information (including copies of any relevant books, records or other documents) as is relevant to the compliance with any obligation imposed on the designated person by Chapter 3 of Part 4 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and retained by that designated person under section 55 of that Act.

(c) For the purpose of a notice served under paragraph (b)(ii) the period to be specified in it shall not be less than 14 days.

(d) Where an authorised DAC officer—

(i) accesses any of the registers or information system referred to in paragraph (b)(i), the beneficial owner concerned shall be notified in writing by the authorised DAC officer of the access to the register or information system—

(I) in a case where the identity of the beneficial owner concerned is known to the authorised DAC officer at the time the register or information system is accessed, at that time or as soon as practicable thereafter, and

(II) in any other case, as soon as practicable after the identity of the beneficial owner concerned becomes known to the authorised DAC officer,

or

(ii) serves a notice under paragraph (b)(ii), the beneficial owner concerned shall be notified in writing by the authorised DAC officer of the service of the notice and of the name of the person upon whom it was served—

(I) in a case where the identity of the beneficial owner concerned is known to the authorised DAC officer at the time the notice is served, at that time or as soon as practicable thereafter, and

(II) in any other case, as soon as practicable after the identity of the beneficial owner concerned becomes known to the authorised DAC officer.

(e) The Data Protection Act 2018 shall apply to the access that this subsection affords to an authorised DAC officer in respect of the information in the registers or information system referred to in paragraph (b)(i) and the information referred to in paragraph (b)(ii).

(f) On there being made of the Registrar of Beneficial Ownership of Companies and Industrial and Provident Societies, the Registrar of Beneficial Ownership of Irish Collective Asset-management Vehicles, Credit Unions and Unit Trusts, the Registrar of Beneficial Ownership of Trusts or, in the case of the Central Mechanism of Ownership of Bank and Payment Accounts and Safe-Deposit Boxes, the Central Bank of Ireland, as the case may be, by an authorised officer, a request for access, in accordance with paragraph (b)(i), to a register or information system referred to in paragraph (b)(i), the Registrar concerned, or the Central Bank of Ireland, as the case may be, shall afford the authorised DAC officer access, in a timely manner to the register or information system.

(g) An authorised DAC officer may require a designated person to provide any such additional information, explanations and particulars and to give all assistance to him or her which the authorised DAC officer may reasonably require for the purpose of inspecting the information delivered to him or her under paragraph (b)(ii).