Finance Act, 1998
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Transitional arrangements in relation to section 34 . |
35.—(1) In this section— | |
“auditor” means— | ||
(a) in relation to a company or its qualifying subsidiary, the person or persons appointed as auditor of the company or its qualifying subsidiary, as appropriate, for all the purposes of the Companies Acts, 1963 to 1990, and | ||
(b) in relation to a specified designated fund, the person or persons appointed as auditor of that fund; | ||
“authority” has the meaning assigned to it by section 492 of the Principal Act; | ||
“certifying agency” has the meaning assigned to it by section 488 of the Principal Act; | ||
“certifying Minister” has the meaning assigned to it by section 488 of the Principal Act; | ||
“combined certificate” has the meaning assigned to it by section 492 of the Principal Act; | ||
“County Enterprise Board” means a board referred to in the Schedule to the Industrial Development Act, 1995 ; | ||
“eligible shares” has the meaning assigned to it by section 488 of the Principal Act; | ||
“industrial development agency” has the meaning assigned to it by section 488 of the Principal Act; | ||
“the principal provisions” mean Chapter III of Part I of the Finance Act, 1984 , or Part 16 of the Principal Act; | ||
“prospectus”, in relation to a company, means any prospectus, notice, circular or advertisement, offering to the public for subscription or purchase any eligible shares of the company, and in this definition “the public” includes any section of the public, whether selected as members of the company or as clients of the person issuing the prospectus or in any other manner; | ||
“qualifying subsidiary”, in relation to a company, has the same meaning as it has for the purposes of section 495 of the Principal Act; | ||
“qualifying trading operations” has the meaning assigned to it by section 496 of the Principal Act; | ||
“relevant certificate” has the meaning assigned to it by section 492 of the Principal Act; | ||
“specified designated fund” means an investment fund designated under section 27 of the Finance Act, 1984 , which closed on or before the 5th day of April, 1997; | ||
“the specified period” means the period beginning on the 1st day of December, 1996, and ending on the 2nd day of December, 1997. | ||
(2) Paragraph (a) of section 34 shall not apply as respects eligible shares issued on or after the 3rd day of December, 1997, by a company to which this section applies and in respect of which the conditions in either subsection (5), (6) or (7) are met. | ||
(3) The provisions of Part 16 of the Principal Act which were in force immediately before the 3rd day of December, 1997, shall, as those provisions stand amended by paragraphs (b) and (c) of section 34 , apply as respects eligible shares issued on or after that day by a company to which this section applies and in respect of which the conditions in either subsection (5), (6) or (7) are met. | ||
(4) This section applies to a company which, or whose qualifying subsidiary, either carries on or intends to carry on one or more of the qualifying trading operations. | ||
(5) The conditions of this subsection referred to in subsection (2) are— | ||
(a) the eligible shares are issued by the company on or before the 5th day of April, 1998, and | ||
(b) the eligible shares are issued following a subscription on behalf of an individual by a person or persons having the management of a specified designated fund, and | ||
(c) the company proves to the satisfaction of the Revenue Commissioners that before the 3rd day of December, 1997, it had the intention of raising money, on or before the 5th day of April, 1998, under the principal provisions through the specified designated fund referred to in paragraph (b) of this subsection, | ||
and in determining whether they are satisfied that the company has complied with the requirements specified in paragraph (c) of this subsection the Revenue Commissioners shall have regard to the following— | ||
(i) (I) signed heads of agreement between the company and the fund, or | ||
(II) exchange of correspondence between the company and the fund showing a clear intention that the fund intended, on or before the 5th day of April, 1998, to subscribe for eligible shares in the company, | ||
(ii) a certificate by the auditor of the fund confirming that it is a specified designated fund, and | ||
(iii) any other information the Revenue Commisisoners deem necessary for the purpose. | ||
(6) The conditions of this subsection referred to in subsection (2) are— | ||
(a) the eligible shares are issued by the company on or before the 30th day of September, 1998, and | ||
(b) a relevant certificate or a combined certificate has been issued to the company by an authority before the 3rd day of December, 1997. | ||
(7) The conditions of this subsection referred to in subsection (2) are— | ||
(a) the eligible shares are issued by the company on or before the 30th day of September, 1998, and | ||
(b) the company proves to the satisfaction of the Revenue Commissioners that before the 3rd day of December, 1997, it had an intention to raise money under the principal provisions, and in determining whether they are so satisfied the Revenue Commissioners shall have regard to one or more of the following— | ||
(i) an application in writing made by the company to the Revenue Commissioners in the specified period for the opinion of the Revenue Commissioners as to whether the company would be a qualifying company for the purposes of the principal provisions, | ||
(ii) an application in writing made by the company to an authority in the specified period for a relevant certificate or a combined certificate, | ||
(iii) an application in writing made by the company to an industrial development agency in the specified period for a certificate referred to in section 489 (2)(e) of the Principal Act, | ||
(iv) an application in writing made to a certifying agency, certifying Minister or County Enterprise Board in the specified period for a certificate under section 497 of the Principal Act, and | ||
(v) the publication in the specified period of a prospectus by, or on behalf of, the company, | ||
and | ||
(c) (i) in the case of a company which, or whose qualifying subsidiary, either carries on or intends to carry on a qualifying trading operation as is mentioned in subparagraph (i), (ii), (iii), (v), (viii), (ix), (xi) or (xiii) of paragraph (a) of section 496 (2) of the Principal Act, that in the specified period the company or its qualifying subsidiary, as the case may be, had entered into a binding contract in writing— | ||
(I) to purchase or lease land or a building, | ||
(II) to purchase or lease plant or machinery, or | ||
(III) for the construction or refurbishment of a building, | ||
to be used in the carrying on of its qualifying trading operation, | ||
(ii) in the case of a company which, or whose qualifying subsidiary, either carries on or intends to carry on a qualifying trading operation as is mentioned in subparagraph (vii) of paragraph (a) of section 496 (2) of the Principal Act, that in the specified period the company or its qualifying subsidiary, as the case may be, had entered into a binding contract in writing— | ||
(I) to purchase or lease greenhouses, | ||
(II) to purchase or lease plant or machinery, or | ||
(III) for the construction or refurbishment of greenhouses, | ||
to be used in the carrying on of its qualifying trading operation, | ||
(iii) in the case of a company which, or whose qualifying subsidiary, either carries on or intends to carry on a qualifying trading operation as is mentioned in subparagraph (xii) of paragraph (a) of section 496 (2) of the Principal Act, that in the specified period the company or its qualifying subsidiary, as the case may be, had entered into a binding contract in writing for the production, publication, marketing or promotion of the qualifying recording or qualifying recordings which the company or its qualifying subsidiary, as the case may be, intends to produce, | ||
and the company proves to the satisfaction of the Revenue Commisisoners that the contract which it or its qualifying subsidiary, as the case may be, had entered into was integral to, or consistent with, the purpose for which it had intended to raise money under the principal provisions and that the consideration of the contract is equal to 25 per cent or more of the money which it is intended to so raise. | ||
(8) For the purposes of subsection (7)— | ||
(a) the date on which a contract was entered into by a company or, as the case may be, its qualifying subsidiary, and | ||
(b) the date on which a prospectus was published by, or on behalf of, a company, | ||
shall be confirmed in a certificate by the auditor of the company, or its qualifying subsidiary, as appropriate. |