Capital Gains Tax Act, 1975

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SCHEDULE 4

Administration

Section 51 .

Administration, assessment and collection: general

1.—(1) Capital gains tax shall be under the care and management of the Revenue Commissioners.

(2) Assessments under this Act shall be made by the inspectors or such other officers as the Revenue Commissioners shall appoint in that behalf.

(3) The Collector-General for the time being appointed under section 162 of the Income Tax Act, 1967 , shall collect and levy capital gains tax from time to time charged in all assessments made under the provisions of this Act of which particulars have been transmitted to him under section 187 of the Income Tax Act, 1967 , as applied by paragraph 2, and the further provisions of the said section 162 with regard to the nomination by the Revenue Commissioners of persons to act as the Collector-General or to exercise the powers of the Collector-General shall apply to capital gains tax as they apply to income tax.

Application of income tax administrative provisions

2.—(1) The provisions of the Income Tax Acts relating to the care, management, assessment, collection and recovery of income tax shall, subject to any necessary modifications, apply in relation to capital gains tax as they apply in relation to income tax chargeable under Schedule D.

(2) In particular and without prejudice to the generality of subparagraph (1), the provisions of the said Acts specified in the Table to this paragraph shall, subject to any necessary modifications, apply to capital gains tax.

TABLE

INCOME TAX PROVISIONS APPLIED TO CAPITAL GAINS TAX

Income Tax Act, 1967

Finance (Miscellaneous Provisions) Act, 1968

Finance Act, 1971

Finance Act, 1973

Returns and information

3.—(1) The provisions of the Income Tax Acts relating to the making or delivery of any return, statement, declaration, list or other document, the furnishing of any particulars, the production of any document, the making of anything available for inspection, the delivery of any account or the making of any representation, shall, subject to any necessary modifications, apply in relation to capital gains tax as they apply in relation to income tax.

(2) In particular and without prejudice to the generality of subparagraph (1), the provisions of the said Acts specified in the Table to this paragraph shall, subject to any necessary modifications, apply in relation to capital gains tax, and sections 500 , 501 and 503 of the Income Tax Act, 1967 , as applied by this paragraph, shall, for the purposes of this Act, be construed as if in Schedule 15 to the Income Tax Act, 1967 , there were included—

(a) in column 1, references to paragraphs 4 to 7 inclusive,

(b) in column 2, a reference to paragraph 8, and

(c) in column 3, a reference to paragraph 11.

(3) A notice under any of the said provisions of the Income Tax Acts, as applied by this paragraph, may require particulars of any assets acquired by the person on whom the notice was served (or if the notice relates to income or chargeable gains of some other person for whom the person who receives the notice is required to make a return under section 170 of the Income Tax Act, 1967 , as so applied by this paragraph, of any assets acquired by that other person) in the period specified in the notice, being a period beginning not earlier than the 6th day of April, 1974, but excluding—

(a) any assets exempted by section 19 (Government and other securities) or section 24 (miscellaneous exemptions) or

(b) any assets acquired as trading stock.

(4) The particulars required under this paragraph may include particulars of the person from whom the asset was acquired and of the consideration for the acquisition.

(5) A return of income of a partnership under section 70 of the Income Tax Act, 1967 , shall include—

(a) with respect to any disposal of partnership assets during a period to which any part of the return relates, the like particulars as if the partnership were liable to tax on any chargeable gain accruing on the disposal, and

(b) with respect to any acquisition of partnership assets, the particulars required by subparagraph (3).

(6) Where any person has been required by notice or precept given under the provisions of the Income Tax Acts, as applied by this paragraph, or under the provisions of the following paragraphs, to do any act of a kind mentioned in any of the said provisions, and he fails to comply with the notice or precept, or where any person fraudulently or negligently makes, delivers, furnishes or produces any incorrect return, statement, declaration, list, account, particulars or other document (or knowingly makes any false statement or false representation) under any of the said provisions, Part XXXV (penalties and assessments) of the Income Tax Act, 1967 , shall apply to that person for the purposes of capital gains tax as they apply in the case of a like failure or act for the purposes of income tax.

TABLE

FURTHER INCOME TAX PROVISIONS APPLIED TO CAPITAL GAINS TAX

Income Tax Act, 1967

Finance Miscellaneous Provisions) Act, 1968

Finance Act, 1973

Third Schedule, paragraph 1 (holder of mineral licence).

Returns by issuing houses, stockbrokers, auctioneers, etc.

4.—(1) For the purpose of obtaining particulars of chargeable gains, an inspector may by notice in writing require a return under any of the provisions of this paragraph.

(2) (a) An issuing house or other person carrying on a business of effecting public issues of shares or securities in any company, or placings of shares or securities in any company, either on behalf of the company, or on behalf of holders of blocks of shares or securities which have not previously been the subject of a public issue or placing, may be required to make a return of all such public issues or placings effected by that person in the course of the business in the period specified in the notice requiring the return, giving particulars of the persons to or with whom the shares or securities are issued, allotted or placed, and the number or amount of the shares or securities so obtained by them respectively.

(b) In this subparagraph “shares” includes units in a unit trust.

(3) A person not carrying on such a business may be required to make a return as regards any such issue or placing effected by that person and specified in the notice, giving particulars of the persons to or with whom the shares or securities are issued, allotted, or placed and the number or amount of the shares or securities so obtained by them respectively.

(4) A member of a stock exchange in the State may be required to make a return giving particulars of any transactions effected by him in the course of his business in the period specified in the notice requiring the return and giving particulars of—

(a) the parties to the transactions,

(b) the number or amount of the shares or securities dealt with in the respective transactions, and

(c) the amount or value of the consideration.

(5) A person (other than a member of a stock exchange in the State) who acts as an agent in the State in transactions in shares or securities may be required to make a return giving particulars of any such transactions effected by him in the period specified in the notice and giving particulars of—

(a) the parties to the transactions,

(b) the number or amount of the shares or securities dealt with in the respective transactions, and

(c) the amount or value of the consideration.

(6) An auctioneer, and any person carrying on a trade of dealing in any description of tangible movable property, or of acting as an agent or intermediary in dealings in any description of tangible movable property, may be required to make a return giving particulars of any transactions effected by or through him in which any asset which is tangible movable property is disposed of for a consideration the amount or value of which, in the hands of the recipient, exceeds two thousand pounds.

(7) No person shall be required under this paragraph to include in a return particulars of any transaction effected before the 6th day of April, 1974, or more than three years before the service of the notice requiring him to make the return.

Returns by nominee shareholders

5.—(1) If, for the purpose of obtaining particulars of chargeable gains, any person in whose name any shares of a company are registered is so required by notice in writing by the Revenue Commissioners or by an inspector, he shall state whether or not he is the beneficial owner of those shares and, if not the beneficial owner of those shares or any of them, shall furnish the name and address of the person or persons on whose behalf the shares are registered in his name.

(2) In this paragraph references to shares include references to securities and loan capital.

Returns by party to a settlement

6.—The Revenue Commissioners may by notice in writing require any person, being a party to a settlement, to furnish them within such time as they may direct (not being less than twenty-eight days) with such particulars relating to the settlement as they think necessary for the purposes of this Act.

Returns relating to non-resident companies and trusts

7.—A person holding shares or securities in a company which is not resident or ordinarily resident in the State, or who is beneficially interested or who acts as agent for or on behalf of a person who is beneficially interested in settled property under a settlement the trustees of which are not resident or ordinarily resident in the State, may be required by a notice by the Revenue Commissioners to give such particulars as the Revenue Commissioners may consider are required to determine whether the company or trust falls within section 36 (non-resident companies) or section 37 (non-resident trusts), and whether any chargeable gains have accrued to that company, or to the trustees of that settlement, in respect of which the person to whom the notice is given is liable to capital gains tax under the said section 36 or 37.

Appeals

8.—(1) A person aggrieved by any assessment under this Act made upon him by the inspector or such other officer as is mentioned in paragraph 1 (2) shall be entitled to appeal to the Appeal Commissioners on giving, within twenty-one days after the date of the notice of assessment, notice in writing to the inspector or other officer, and in default of notice of appeal by a person to whom notice of assessment has been given or in case of the neglect or refusal of a person, who has given notice of appeal, to attend before the Appeal Commissioners at the time and place appointed for the purpose of hearing appeals, the assessment made, on him shall be final and conclusive.

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

(a) the appointment of times and places for the hearing of appeals;

(b) the giving of notice to each person who has given notice of appeal of the time and place appointed for the hearing of his appeal;

(c) the determination of an appeal by agreement between the appellant or his agent and an inspector of taxes or such other officer as is mentioned in paragraph 1 (2);

(d) the determination of an appeal by the appellant giving notice of his intention not to proceed with the appeal;

(e) the hearing and determination of an appeal by the Appeal Commissioners including the hearing and determination of an appeal by one Appeal Commissioner;

(f) the determination of an appeal through the neglect or refusal of a person who has given notice of appeal to attend before the Appeal Commissioners at the time and place appointed;

(g) the extension of the time for giving notice of appeal, and the readmission of appeals by the Appeal Commissioners;

(h) the rehearing of an appeal by a judge of the Circuit Court and the statement of a case for the opinion of the High Court on a point of law;

(i) the payment of tax in accordance with the determination of the Appeal Commissioners notwithstanding that an appeal is required to be reheard by a judge of the Circuit Court or that a case for the opinion of the High Court on a point of law has been required to be stated or is pending;

(j) the payment of tax which is agreed not to be in dispute in relation to an appeal; and

(k) the procedures for appeal,

shall, with any necessary modifications, apply to an appeal under any of the provisions of this Act which provide for an appeal to the Appeal Commissioners as if the appeal were an appeal against an assessment to income tax.

Regulations with respect to appeals

9.—(1) The Revenue Commissioners may make regulations—

(a) as respects the conduct of appeals against assessments and decisions on claims under this Act,

(b) entitling persons, in addition to those who would be so entitled apart from the regulations, to appear on such appeals,

(c) regulating the time within which such appeals or claims may be brought or made,

(d) where the market value of an asset on a particular date or an apportionment or any other matter may affect the liability to capital gains tax of two or more persons, enabling any such person to have the matter determined by the tribunal having jurisdiction to determine that matter if arising on an appeal against an assessment, and prescribing a procedure by which the matter is not determined differently on different occasions,

(e) authorising an inspector or other officer of the Revenue Commissioners, notwithstanding the obligation as to secrecy imposed by the Income Tax Acts or any other Act, to disclose to a person entitled to appear on such an appeal the market value of an asset as determined by an assessment or decision on a claim, or to disclose to a person whose liability to tax may be affected by the determination of the market value of an asset on a particular date, or an apportionment or any other matter, any decision on the matter made by an inspector or other officer of the Revenue Commissioners.

(2) Regulations under this paragraph may contain such supplemental and incidental provisions as appear to the Revenue Commissioners to be necessary.

(3) Every regulation made under this paragraph shall be laid before Dáil Éireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by Dáil Éireann within the next twenty-one days on which Dáil 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.

Married persons

10.—(1) A return under section 172 of the Income Tax Act, 1967 (as applied by this Schedule), as respects chargeable gains accruing to a married woman in a year of assessment, or part of a year of assessment, during which she is a married woman living with her husband may be required either from her or, if her husband is liable under section 13 (1) from him.

(2) Section 194 of the Income Tax Act, 1967 (collection from wife of tax assessed on husband attributable to her income), and section 195 of the said Act (right of husband to disclaim liability for tax on deceased wife's income) shall apply with any necessary modifications in relation to capital gains tax as they apply in relation to income tax.

Disposal of certain assets by non-resident

11.—(1) This paragraph shall apply to assets that are—

(a) land in the State;

(b) minerals in the State or any rights, interests or other assets in relation to mining or minerals or the searching for minerals;

(c) exploration or exploitation rights in a designated area;

(d) shares in a company deriving their value or the greater part of their value directly or indirectly from assets specified in clause (a), (b) or (c) other than shares quoted on a stock exchange; and

(e) goodwill of a trade carried on in the State.

(2) Upon payment of the consideration for acquiring an asset to which this paragraph applies, the person by or through whom any such payment is made shall deduct thereout a sum representing an amount of capital gains tax on one-half of the said payment at the rate of such tax in force at the time the payment is made and the person to whom the payment is made shall allow such deduction upon receipt of the residue of the payment and the person making the deduction shall, on proof of payment to the Revenue Commissioners of the amount so deducted, be acquitted and discharged of so much money as is represented by the deduction as if that sum had been actually paid to the person making the disposal:

Provided that where the person disposing of the asset produces to the person acquiring the asset a certificate issued under subparagraph (6) in relation to the disposal, no such deduction shall be made.

(3) Where any such payment as aforesaid is made by or on be half of any person, that person shall forthwith deliver to the Revenue Commissioners an account of the payment, and of the amount deducted therefrom, and the inspector shall, notwithstanding any other provision of this Act, assess and charge that person to capital gains tax for the year of assessment in which the payment was made on an amount equal to one-half of the payment at the rate specified in section 3 (3).

(4) The inspector may, where, in relation to any such payment as aforesaid, any person has made default in delivering an account required by this paragraph, or where he is not satisfied with the account, estimate the amount of the payment to the best of his judgment and, notwithstanding section 5 (1), assess and charge that person to capital gains tax for the year of assessment in which the payment was made on an amount equal to one-half of the amount so estimated at the rate specified in section 3 (3).

(5) Where the amount of capital gains tax assessed and charged under subparagraph (3) or (4) is paid, appropriate relief shall, on a claim being made in that behalf, be given to the person chargeable in respect of the gain on the disposal, whether by discharge or repayment or otherwise.

(6) A person chargeable to capital gains tax on the disposal of any asset to which this paragraph applies may apply to the inspector for a certificate that tax should not be deducted from the consideration for the disposal of the asset and, if the inspector is satisfied that the person making the application is the person making the disposal and that—

(a) he is ordinarily resident in the State, or

(b) no amount of capital gains tax is payable in respect of the disposal, or

(c) the capital gains tax chargeable for the year of assessment for which he is chargeable in respect of the disposal of the asset and the tax chargeable on any gain accruing in any earlier year of assessment (not being a year ending earlier than the 6th day of April, 1974) on a previous disposal of the asset has been paid,

the inspector shall issue the certificate.

(7) This paragraph shall not apply where the consideration on a disposal does not exceed the sum of fifty thousand pounds:

Provided that if an asset owned at one time by one person, being an asset to which this paragraph would, but for this subparagraph apply, is disposed of by that person in parts—

(a) to the same person, or

(b) to persons who are acting in concert or who are in the terms of section 33 connected persons,

whether on the same or different occasions, the several disposals shall for the purposes of this subparagraph but not for any other purpose be treated as a single disposal.

(8) Notwithstanding section 5 (2), where an amount of capital gains tax is assessed and charged pursuant to this paragraph, such amount shall be due and payable on the day next after the day on which the assessment is made.

(9) In this paragraph “exploration and exploitation rights”, “designated area” and “shares” have the same meanings as in section 4 (8).

(10) This paragraph shall apply only in relation to disposals and acquisitions occurring after the passing of this Act.

Liability of trustees, etc.

12.—(1) Capital gains tax chargeable in respect of chargeable gains accruing to the trustees of a settlement or capital gains tax due from the personal representatives of a deceased person may be assessed and charged on and in the name of any one or more of those trustees or personal representatives.

(2) Subject to section 8 (3), chargeable gains accruing to the trustees of a settlement or to the personal representatives of a deceased person, and capital gains tax chargeable on or in the name of such trustees or personal representatives, shall not be regarded for the purposes of this Act as accruing to, or chargeable on, any other person, nor shall any trustee or personal representative be regarded for the purposes of this Act as an individual.

Conclusiveness of income tax decisions

13.—Any assessment to income tax or decision on a claim under the Income Tax Acts, and any decision on an appeal under the Income Tax Acts against such an assessment or decision, shall be conclusive so far as under section 6 or Schedule 1 or any other provision of this Act liability to tax depends on the provisions of the Income Tax Acts.

Valuation of assets: power to inspect

14.—(1) An inspector or such other officer as is mentioned in paragraph 1 (2) shall be authorised to inspect any property for the purpose of ascertaining its market value and the person having the custody or possession of that property shall permit the inspector or other officer so authorised, on producing if so required evidence of his authority, to inspect it at such reasonable times as the Revenue Commissioners may consider necessary.

(2) Section 515 of the Income Tax Act, 1967 , shall apply to an inspector or other officer referred to in subparagraph (1) and to a person acting in the aid of such an inspector or officer as it applies in relation to the persons referred to in paragraphs (a) and (b) of subsection (1) of that section.

Capital gains tax: preferential payment

15.—The priority attaching to assessed taxes under section 4 of the Preferential Payment in Bankruptcy (Ireland) Act, 1889 and sections 98 and 285 of the Companies Act, 1963 , shall apply to capital gains tax.

Power to combine returns, etc. with income tax documents

16.—Any return or assessment or other document relating to chargeable gains or capital gains tax may be combined with one relating to income or income tax.

Recovery of tax from shareholder

17.—(1) This paragraph applies where a person who is connected with a company resident in the State receives or becomes entitled to receive in respect of shares in the company any capital distribution from the company, other than a capital distribution representing a reduction of capital, and—

(a) the capital so distributed derives from the disposal of assets in respect of which a chargeable gain accrues to the company, or

(b) the distribution constitutes such a disposal of assets.

(2) If the capital gains tax assessed on the company for the year of assessment in which the chargeable gain accrues included any amount in respect of that chargeable gain, and any of the tax assessed on the company for that year is not paid within six months from the date when it becomes payable by the company, the said person may by an assessment made within two years from that date be assessed and charged (in the name of the company) to an amount of that capital gains tax—

(a) not exceeding the amount or value of the capital distribution which that person has received or became entitled to receive, and

(b) not exceeding a proportion equal to that person's share of the capital distribution made by the company of capital gains tax on the amount of that gain at the rate in force when the gain accrued.

(3) A person paying any amount of tax under this paragraph shall be entitled to recover a sum equal to that amount from the company.

(4) The provisions of this paragraph are without prejudice to any liability of the person receiving or becoming entitled to receive the capital distribution in respect of a chargeable gain accruing to him by reference to the capital distribution as constituting a disposal of an interest in shares in the company.

(5) In this paragraph “capital distribution” has the same meaning as in paragraph 1 of Schedule 2 and a person shall be regarded as connected with a company if that person would be so regarded for the purposes of section 33.

Gifts: recovery of tax from donee

18.—(1) If in any year of assessment a chargeable gain accrues to any person on the disposal of an asset by way of gift and any amount of capital gains tax assessed on that person for that year of assessment is not paid within twelve months from the date when the tax becomes payable, the donee may, by an assessment made not later than two years from the date when the tax became payable, be assessed and charged (in the name of the donor) to capital gains tax on an amount not exceeding the amount of the chargeable gain so accruing, and not exceeding such an amount of chargeable gains as would, if charged at the rate provided in section 3 (3), result in liability to an amount of capital gains tax equal to the said amount of capital gains tax which was not paid by the donor.

(2) Where the gift consists of a new asset, the donee may, in addition to being assessed and charged under subparagraph (1) in respect of the new asset, be assessed and charged as if the chargeable gain on the disposal of the old asset were a chargeable gain on the disposal of the new asset the capital gains tax in respect of which was not paid within twelve months from the date when the tax had become payable.

(3) (a) Where a person on whom capital gains tax is assessed and charged in respect of the disposal of an asset transfers directly or indirectly by way of gift to a donee the whole of the proceeds of the disposal, or, where the asset is a new asset acquired by the use of the proceeds of the disposal of an old asset, the whole of the proceeds of the disposal of the new asset, subparagraphs (1) and (2) shall apply to the amount of capital gains tax so assessed and charged.

(b) Where a person on whom capital gains tax is assessed and charged in respect of the disposal of an asset transfers directly or indirectly by way of gift to a donee part of the proceeds of the disposal, or, where the asset is a new asset acquired by the use of the proceeds of the disposal of an old asset, part of the proceeds of the disposal of the new asset, subparagraphs (1) and (2) shall apply to such part of the amount of capital gains tax so assessed and charged as bears to the whole of such tax the same proportion that the part aforesaid of the proceeds aforesaid bear to the whole of those proceeds.

(4) The donee of a gift paying any amount of tax in pursuance of this paragraph shall, subject to any terms or conditions of the gift, be entitled to recover a sum of that amount from the donor of the gift as a simple contract debt in any court of competent jurisdiction.

(5) References in this paragraph to a donor include, in the case of an individual who has died, references to his personal representatives.

(6) In this paragraph references to a gift include references to any transaction otherwise than by way of a bargain made at arm's length so far as money or money's worth passes under the transaction without full consideration in money or money's worth, and “donor” and “donee” shall be construed accordingly; and this paragraph shall apply in relation to a gift made to two or more donees with any necessary modifications and subject to the proviso that each such donee shall be liable to be assessed and charged in respect only of such part of the amount of capital gains tax payable by the donees by virtue of this paragraph as bears to the whole of such tax the same proportion as the part of the gift made to that donee bears to the whole of the gift.

(7) In this paragraph “old asset” and “new asset” have the same meanings as in section 28.

Miscellaneous

19.—For the purposes of this Schedule, section 94 of the Income Tax Act, 1967 , as applied by paragraph 3 (returns and information) shall apply to property or leases of property other than premises as it applies to premises or leases of premises.