Finance Act, 1974

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Transfer of assets abroad.

57.—For the purpose of preventing the avoiding by individuals ordinarily resident in the State of liability to tax by means of transfers of assets by virtue or in consequence whereof, either alone or in conjunction with associated operations, income becomes payable to persons resident or domiciled out of the State, it is hereby enacted as follows:—

(1) Where by virtue or in consequence of any such transfer, either alone or in conjunction with associated operations, such an individual has, within the meaning of this section, power to enjoy, whether forthwith or in the future, any income of a person resident or domiciled out of the State which, if it were income of that individual received by him in the State, would be chargeable to tax by deduction or otherwise, that income shall, whether it would or would not have been chargeable to tax apart from the provisions of this section, be deemed to be income of that individual for all the purposes of the Income Tax Acts.

(2) Where, whether before or after any such transfer, such an individual receives or is entitled to receive any capital sum the payment whereof is in any way connected with the transfer or any associated operation, any income which, by virtue or in consequence of the transfer, either alone or in conjunction with associated operations, has become the income of a person resident or domiciled out of the State shall, whether it would or would not have been chargeable to tax apart from the provisions of this section, be deemed to be the income of that individual for all the purposes of the Income Tax Acts.

In this subsection “capital sum” means—

(a) any sum paid or payable by way of loan or repayment of a loan, and

(b) any other sum paid or payable otherwise than as income, being a sum which is not paid or payable for full consideration in money or money's worth.

(3) Subsections (1) and (2) shall not apply if the individual shows in writing or otherwise to the satisfaction of the Revenue Commissioners either—

(a) that the purpose of avoiding liability to taxation was not the purpose or one of the purposes for which the transfer or associated operations or any of them was effected; or

(b) that the transfer and any associated operations were bona fide commercial transactions and were not designed for the purpose of avoiding liability to taxation.

In any case where a person is aggrieved by a decision taken by the Revenue Commissioners in exercise of their functions under this subsection the person shall be entitled to appeal to the Appeal Commissioners against the decision of the Revenue Commissioners and the Appeal Commissioners shall hear and determine the appeal as if it were an appeal against an assessment to tax and the provisions of the Income Tax Acts relating to the rehearing of an appeal and the statement of a case for the opinion of the High Court on a point of law shall apply accordingly with any necessary modifications.

(4) For the purposes of this section “an associated operation” means, in relation to any transfer, an operation of any kind effected by any person in relation to any of the assets transferred or any assets representing, whether directly or indirectly, any of the assets transferred, or to the income arising from any such assets, or to any assets representing, whether directly or indirectly, the accumulations of income arising from any such assets.

(5) An individual shall, for the purposes of this section, be deemed to have power to enjoy income of a person resident or domiciled out of the State if—

(a) the income is in fact so dealt with by any person as to be calculated, at some point of time, and whether in the form of income or not, to enure for the benefit of the individual, or

(b) the receipt or accrual of the income operates to increase the value to the individual of any assets held by him or for his benefit, or

(c) the individual receives or is entitled to receive, at any time, any benefit provided or to be provided out of that income or out of moneys which are or will be available for the purpose by reason of the effect or successive effects of the associated operations on that income and on any assets which directly or indirectly represent that income, or

(d) the individual has power, by means of the exercise of any power of appointment or power of revocation or otherwise, to obtain for himself, whether with or without the consent of any other person, the beneficial enjoyment of the income, or may, in the event of the exercise of any power vested in any other person, become entitled to the beneficial enjoyment of the income, or

(e) the individual is able in any manner whatsoever, and whether directly or indirectly, to control the application of the income.

(6) In determining whether an individual has power to enjoy income within the meaning of this section, regard shall be had to the substantial result and effect of the transfer and any associated operations, and all benefits which may at any time accrue to the individual (whether or not he has rights at law or in equity in or to those benefits) as a result of the transfer and any associated operations shall be taken into account irrespective of the nature or form of the benefits.

(7) For the purposes of this section, any body corporate incorporated outside the State shall be treated as if it were resident out of the State whether it is so resident or not.

(8) For the purposes of this section—

(a) a reference to an individual shall be deemed to include the wife or husband of the individual,

(b) “assets” includes property or rights of any kind and “transfer”, in relation to rights, includes the creation of those rights,

(c) “benefit” includes a payment of any kind,

(d) references to income of a person resident or domiciled out of the State shall, where the amount of the income of a company for any year or period has been apportioned under section 530 of the Income Tax Act, 1967 , include references to so much of the income of the company for that year or period as is equal to the amount so apportioned to that person,

(e) references to assets representing any assets, income or accumulations of income include references to shares in or obligations of any company to which, or obligations of any other person to whom, those assets, that income or those accumulations are or have been transferred,

(f) “company” means any body corporate or unincorporated association.

(9) The provisions of this section shall apply for the purposes of assessment to tax for the year 1974-75 and subsequent years, and shall apply in relation to transfers of assets and associated operations whether carried out before or after the commencement of this Act.