Finance (No. 2) Act 2008
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SCHEDULE 5 Miscellaneous Amendments in Relation to Penalties | ||
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PART 1 Amendment of Part 47 as respects Penalties | ||
1. The Taxes Consolidation Act 1997 is amended in Part 47 by the insertion of the following after Chapter 3: | ||
“Chapter 3A | ||
Determination of Penalties and Recovery of Penalties | ||
Interpretation (Chapter 3A). | ||
1077A.— In this Chapter— | ||
‘ the Acts ’ means— | ||
(a) the Tax Acts, | ||
(b) the Capital Gains Tax Acts, | ||
(c) Parts 18A and 18B, | ||
(d) the Value-Added Tax Act 1972 , and the enactments amending or extending that Act, | ||
(e) the Capital Acquisitions Tax Consolidation Act 2003 , and the enactments amending or extending that Act, | ||
(f) the Stamp Duties Consolidation Act 1999 , and the enactments amending or extending that Act, | ||
(g) the statutes relating to the duties of excise and to the management of those duties, | ||
and any instrument made thereunder and any instrument made under any other enactment relating to tax; | ||
‘ relevant court’ means the District Court, the Circuit Court or the High Court, as appropriate, by reference to the jurisdictional limits for civil matters laid down in the Courts of Justice Act 1924 , as amended, and the Courts (Supplemental Provisions) Act 1961 , as amended; | ||
‘ Revenue officer ’ means an officer of the Revenue Commissioners, | ||
‘tax’ means any tax, duty, levy or charge under the care and management of the Revenue Commissioners. | ||
Penalty notifications and determinations. | ||
1077B.— (1) Where— | ||
(a) in the absence of any agreement between a person and a Revenue officer that the person is liable to a penalty under the Acts, or | ||
(b) following the failure by a person to pay a penalty the person has agreed a liability to, | ||
a Revenue officer is of the opinion that the person is liable to a penalty under the Acts, then that officer shall give notice in writing to the person and such notice shall identify— | ||
(i) the provisions of the Acts under which the penalty arises, | ||
(ii) the circumstances in which that person is liable to the penalty, and | ||
(iii) the amount of the penalty to which that person is liable, | ||
and include such other details as the Revenue officer considers necessary. | ||
(2) A Revenue officer may at any time amend an opinion that a person is liable to a penalty under the Acts and shall give due notice of such amended opinion in like manner to the notice referred to in subsection (1). | ||
(3) Where a person to whom a notice issued under subsection (1) or (2) does not, within 30 days after the date of such a notice— | ||
(a) agree in writing with the opinion or amended opinion contained in such notice, and | ||
(b) make a payment to the Revenue Commissioners of the amount of the penalty specified in such a notice, | ||
then a Revenue officer may make an application to a relevant court for that court to determine whether— | ||
(i) any action, inaction, omission or failure of, or | ||
(ii) any claim, submission or delivery by, | ||
the person in respect of whom the Revenue officer made the application gives rise to a liability to a penalty under the Acts on that person. | ||
(4) A copy of any application to a relevant court for a determination under subsection (3) shall be issued to the person to whom the application relates. | ||
(5) This section applies in respect of any act or omission giving rise to a liability to a penalty under the Acts whether arising before, on or after the passing of the Finance (No. 2) Act 2008 but shall not apply in respect of a penalty paid, or amounts paid in respect of a penalty, before the passing of that Act. | ||
Recovery of penalties. | ||
1077C.— (1) Where a relevant court has made a determination that a person is liable to a penalty— | ||
(a) that court shall also make an order as to the recovery of that penalty, and | ||
(b) without prejudice to any other means of recovery, that penalty may be collected and recovered in like manner as an amount of tax. | ||
(2) Where a person is liable to a penalty under the Acts, that penalty is due and payable from the date— | ||
(a) it had been agreed in writing (or had been agreed in writing on that person’s behalf) that the person is liable to that penalty, | ||
(b) the Revenue Commissioners had agreed or undertaken to accept a specified sum of money in the circumstances mentioned in paragraph (c) or (d) of section 1086(2) from that individual, or | ||
(c) a relevant court has determined that the person is liable to that penalty. | ||
(3) This section applies in respect of any act or omission giving rise to a liability to a penalty under the Acts whether arising before, on or after the passing of the Finance (No. 2) Act 2008. | ||
Proceedings against executor, administrator or estate. | ||
1077D.— (1) Where before an individual’s death— | ||
(a) that individual had agreed in writing (or it had been agreed in writing on his or her behalf) that he or she was liable to a penalty under the Acts, | ||
(b) that individual had agreed in writing with an opinion or amended opinion of a Revenue officer that he or she was liable to a penalty under the Acts (or such opinion or amended opinion had been agreed in writing on his or her behalf), | ||
(c) the Revenue Commissioners had agreed or undertaken to accept a specified sum of money in the circumstances mentioned in paragraph (c) or (d) of section 1086(2) from that individual, or | ||
(d) a relevant court has determined that the individual was liable to a penalty under the Acts, | ||
then the penalty shall be due and payable and, subject to subsection (2), any proceedings for the recovery of such penalty under the Acts which have been, or could have been, instituted against that individual may be continued or instituted against his or her executor, administrator or estate, as the case may be, and any penalty awarded in proceedings so continued or instituted shall be a debt due from and payable out of his or her estate. | ||
(2) Proceedings may not be instituted by virtue of subsection (1) against the executor or administrator of a person at a time when by virtue of subsection (2) of section 1048 that executor or administrator is not assessable and chargeable under that section in respect of tax on profits or gains which arose or accrued to the person before his or her death. | ||
Chapter 3B | ||
Income Tax, Corporation Tax and Capital Gains Tax: Penalties for false returns, etc. | ||
Penalty for deliberately or carelessly making incorrect returns, etc. | ||
1077E.— (1) In this section— | ||
‘t he Acts ’ means the Tax Acts, the Capital Gains Tax Acts and Parts 18A and 18B of this Act; | ||
‘ carelessly ’ means failure to take reasonable care; | ||
‘ liability to tax ’ means a liability to the amount of the difference specified in subsection (11) or (12) arising from any matter referred to in subsection (2), (3), (5) or (6); | ||
‘ period ’ means a year of assessment or accounting period, as the context requires; | ||
‘ prompted qualifying disclosure ’, in relation to a person, means a qualifying disclosure that has been made to the Revenue Commissioners or to a Revenue officer in the period between— | ||
(a) the date on which the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, and | ||
(b) the date that the investigation or inquiry starts; | ||
‘ qualifying disclosure ’, in relation to a person, means— | ||
(a) in relation to a penalty referred to in subsection (4), a disclosure that the Revenue Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (4), and full particulars of all matters occasioning any liability to tax or duty that gives rise to a penalty referred to in section 27A(4) of the Value-Added Tax Act 1972 , section 134A(2) of the Stamp Duties Consolidation Act 1999 and the application of subsection (4) to the Capital Acquisitions Tax Consolidation Act 2003 , and | ||
(b) in relation to a penalty referred to in subsection (7), a disclosure that the Revenue Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (7) for the relevant period under whichever of the Acts the disclosure relates to, | ||
made in writing to the Revenue Commissioners or to a Revenue officer and signed by or on behalf of that person and that is accompanied by— | ||
(i) a declaration, to the best of that person’s knowledge, information and belief, made in writing that all matters contained in the disclosure are correct and complete, and | ||
(ii) a payment of either or both of the tax and duty payable in respect of any matter contained in the disclosure and the interest on late payment of that tax and duty. | ||
‘ Revenue officer ’ means an officer of the Revenue Commissioners; | ||
‘ tax ’ means income tax, corporation tax, capital gains tax, income levy or parking levy; | ||
‘unprompted qualifying disclosure’ , in relation to a person, means a qualifying disclosure that the Revenue Commissioners are satisfied has been voluntarily furnished to them— | ||
(a) before an investigation or inquiry had been started by them or by a Revenue officer into any matter occasioning a liability to tax of that person, or | ||
(b) where the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, before that notification. | ||
(2) Where any person— | ||
(a) delivers any incorrect return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29 which contains a deliberate understatement of income, profits or gains or a deliberately false or overstated claim in connection with any allowance, deduction, relief or credit, | ||
(b) makes any incorrect return, statement or declaration in connection with any claim for any allowance, deduction, relief or credit and does so deliberately, or | ||
(c) submits to the Revenue Commissioners, the Appeal Commissioners or a Revenue officer any incorrect accounts which contain a deliberate understatement of income, profits or gains or a deliberate overstatement of any claim in connection with any allowance, deduction, relief or credit, | ||
that person shall be liable to a penalty. | ||
(3) Where any person deliberately fails to comply with a requirement to deliver a return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29, that person shall be liable to a penalty. | ||
(4) The penalty referred to— | ||
(a) in subsection (2), shall be the amount specified in subsection (11), and | ||
(b) in subsection (3), shall be the amount specified in subsection (12), | ||
reduced, where the person liable to the penalty cooperated fully with any investigation or inquiry started by the Revenue Commissioners or by a Revenue officer into any matter occasioning a liability to tax of that person, to— | ||
(i) 75 per cent of that amount where subparagraph (ii) or (iii) does not apply, | ||
(ii) 50 per cent of that amount where a prompted qualifying disclosure is made by that person, or | ||
(iii) 10 per cent of that amount where an unprompted qualifying disclosure is made by that person. | ||
(5) Where any person carelessly but not deliberately— | ||
(a) delivers any incorrect return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29, | ||
(b) makes any incorrect return, statement or declaration in connection with any claim for any allowance, deduction, relief or credit, or | ||
(c) submits to the Revenue Commissioners, the Appeal Commissioners or a Revenue officer any incorrect accounts which contain an understatement of income, profits or gains or an overstatement of any claims in connection with any allowance, deduction, relief or credit, | ||
that person shall be liable to a penalty. | ||
(6) Where any person carelessly but not deliberately fails to comply with a requirement to deliver a return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29, that person shall be liable to a penalty. | ||
(7) (a) The penalty referred to— | ||
(i) in subsection (5) shall be the amount specified in subsection (11), and | ||
(ii) in subsection (6) shall be the amount specified in subsection (12), | ||
reduced to 40 per cent in cases where the excess referred to in subparagraph (I) of paragraph (b) applies and to 20 per cent in other cases. | ||
(b) Where a person liable to a penalty cooperated fully with any investigation or inquiry started by the Revenue Commissioners or by a Revenue officer into any matter occasioning a liability to tax of that person, the penalty referred to— | ||
(i) in subsection (5), shall be the amount specified in subsection (11), and | ||
(ii) in subsection (6), shall be the amount specified in subsection (12), | ||
reduced— | ||
(I) where the difference referred to in subsection (11) or subsection (12), as the case may be, exceeds 15 per cent of the amount referred to in paragraph (b) of subsection (11) or paragraph (b) of subsection (12), to— | ||
(A) 30 per cent of the difference referred to in subsection (11) or, as the case may be, subsection (12) (in clauses (B) and (C) referred to as ‘that amount’) where clause (B) or (C) does not apply, | ||
(B) 20 per cent of that amount where a prompted qualifying disclosure is made by that person, or | ||
(C) 5 per cent of that amount where an unprompted qualifying disclosure is made by that person, | ||
or | ||
(II) where the difference referred to in subsection (11) or subsection (12), as the case may be, does not exceed 15 per cent of the amount referred to in paragraph (b) of subsection (11) or paragraph (b) of subsection (12) to— | ||
(A) 15 per cent of the difference referred to in subsection (11) or, as the case may be, subsection (12) (in clauses (B) and (C) referred to as ‘that amount’) where clause (B) or (C) does not apply, | ||
(B) 10 per cent of that amount where a prompted qualifying disclosure is made by that person, or | ||
(C) 3 per cent of that amount where an unprompted qualifying disclosure is made by that person. | ||
(8) Where any person deliberately or carelessly furnishes, gives, produces or makes any incorrect return, information, certificate, document, record, statement, particulars, account or declaration of a kind mentioned in any of the provisions specified in column 2 or 3 of Schedule 29, that person shall be liable to— | ||
(a) a penalty of €3,000 where that person has acted carelessly, or | ||
(b) a penalty of €5,000 where that person has acted deliberately. | ||
(9) Where any return, statement, declaration or accounts mentioned in subsection (2) or (5) was or were made or submitted by a person, neither deliberately nor carelessly, and it comes to that person’s notice that it was or they were incorrect, then, unless the error is remedied without unreasonable delay, the incorrect return, statement, declaration or accounts shall be treated for the purposes of this section as having been deliberately made or submitted by that person. | ||
(10) Subject to section 1077D(2), proceedings or applications for the recovery of any penalty under this section shall not be out of time because they are commenced after the time allowed by section 1063. | ||
(11) The amount referred to in paragraph (a) of subsection (4) and in paragraph (a)(i) of subsection (7) shall be the difference between— | ||
(a) the amount of tax that would have been payable for the relevant periods by the person concerned (including any amount deducted at source and not repayable) if that tax had been computed in accordance with the incorrect or false return, statement, declaration or accounts as actually made or submitted by or on behalf of that person for those periods, and | ||
(b) the amount of tax that would have been payable for the relevant periods by the person concerned (including any amount deducted at source and not repayable) if that tax had been computed in accordance with the true and correct return, statement, declaration or accounts that should have been made or submitted by or on behalf of that person for those periods, | ||
and for the purposes of this subsection and of subsection (12) references in those subsections to tax payable shall be construed without regard to the definition of ‘income tax payable’ in section 3. | ||
(12) The amount referred to in paragraph (b) of subsection (4) and in paragraph (b)(ii) of subsection (7) shall be the difference between— | ||
(a) the amount of tax paid by that person for the relevant periods before the start by the Revenue Commissioners or by any Revenue officer of any inquiry or investigation where the Revenue Commissioners had announced publicly that they had started an inquiry or investigation or where the Revenue Commissioners have, or a Revenue officer has, carried out an inquiry or investigation into any matter that would have been included in the return or statement if the return or statement had been delivered by that person and the return or statement had been correct, and | ||
(b) the amount of tax which would have been payable for the relevant periods if the return or statement had been delivered by that person and the return or statement had been correct. | ||
(13) Where a second qualifying disclosure is made by a person within 5 years of such person’s first qualifying disclosure, then as regards matters pertaining to that second disclosure— | ||
(a) in relation to subsection (4)— | ||
(i) paragraph (ii) shall apply as if ‘75 per cent’ were substituted for ‘50 per cent’, | ||
(ii) paragraph (iii) shall apply as if ‘55 per cent’ were substituted for ‘10 per cent’, and | ||
(b) in relation to subparagraph (I) of subsection (7)(b)— | ||
(i) clause (B) shall apply as if ‘30 per cent’ were substituted for ‘20 per cent’, and | ||
(ii) clause (C) shall apply as if ‘20 per cent’ were substituted for ‘5 per cent’. | ||
(14) Where a third or subsequent qualifying disclosure is made by a person within 5 years of such person’s second qualifying disclosure, then as regards matters pertaining to that third or subsequent disclosure, as the case may be— | ||
(a) the penalty referred to in paragraphs (a) and (b) of subsection (4) shall not be reduced, and | ||
(b) the reduction referred to in subparagraph (I) of subsection (7)(b) shall not apply. | ||
(15) A disclosure in relation to a person shall not be a qualifying disclosure where— | ||
(a) before the disclosure is made, a Revenue officer had started an inquiry or investigation into any matter contained in that disclosure and had contacted or notified that person, or a person representing that person, in this regard, or | ||
(b) matters contained in the disclosure are matters— | ||
(i) that have become known, or are about to become known, to the Revenue Commissioners through their own investigations or through an investigation conducted by a statutory body or agency, | ||
(ii) that are within the scope of an inquiry being carried out wholly or partly in public, or | ||
(iii) to which the person who made the disclosure is linked, or about to be linked, publicly. | ||
(16) The relevant period for the purposes of subsections (11) and (12) shall be, in relation to anything delivered, made or submitted in any period, that period, the next period and any preceding period, and the references in those subsections to the amount of tax payable shall not, in relation to anything done in connection with a partnership, include any tax not chargeable in the partnership name. | ||
(17) For the purposes of this section, any returns or accounts submitted on behalf of a person shall be deemed to have been submitted by the person unless that person proves that they were submitted without that person’s consent or knowledge.”. | ||
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PART 2 Amendment of the Taxes Consolidation Act 1997 as respects penalties | ||
2. The Taxes Consolidation Act 1997 is amended— | ||
(a) in section 152 by substituting the following for subsection (2): | ||
“(2) Where a company fails to comply with any of the provisions of subsection (1), the company shall incur a penalty of €200 in respect of each failure, but the aggregate amount of the penalties imposed under this section on any company in respect of all such failures connected with any one distribution of dividends or interest shall not exceed €2,000.”, | ||
(b) in section 305(4)— | ||
(i) by deleting the word “knowingly”, and | ||
(ii) by substituting “€3,000” for “€630”, | ||
(c) in section 481 by substituting the following for subsection (16): | ||
“(16) Where a company has issued a certificate for the purposes of subsection (12) or furnished a statement under subsection (13) and either— | ||
(a) the certificate or statement is false or misleading, or | ||
(b) the certificate was issued in contravention of subsection (14), | ||
then— | ||
(i) the company shall be liable to a penalty of €4,000, and | ||
(ii) no relief shall be given under this section and, if any such relief has been given, it shall be withdrawn.”, | ||
(d) in section 486B by substituting the following for subsection (11): | ||
“(11) Where a qualifying company has issued a certificate for the purposes of subsection (7) or furnished a statement under subsection (8) and either— | ||
(a) the certificate or statement is false or misleading in a material respect, or | ||
(b) the certificate was issued in contravention of subsection (9), | ||
then— | ||
(i) the company shall be liable to a penalty of €4,000, and | ||
(ii) no relief shall be given under this section in respect of the matter to which the certificate or statement relates and, if any such relief has been given, it shall be withdrawn.”, | ||
(e) in section 503 by substituting the following for subsection (6): | ||
“(6) Where a company has issued a certificate under subsection (2) or furnished a statement under subsection (3), and— | ||
(a) the certificate or statement is false or misleading, or | ||
(b) the certificate was issued in contravention of subsection (4), | ||
then the company shall be liable to a penalty of €4,000.”, | ||
(f) in section 531(16) by substituting “subsections (9) and (17) of section 1077E” for “subsections (3) and (7) of section 1053”, | ||
(g) in section 783(6)— | ||
(i) by deleting the word “knowingly”, and | ||
(ii) by substituting “€3,000” for “€630”, | ||
(h) in section 789(5)— | ||
(i) by deleting the word “knowingly”, and | ||
(ii) by substituting “€3,000” for “€630”, | ||
(i) in section 886(5) by substituting “€3,000” for “€1,520”, | ||
(j) in section 887(5)(b) by substituting “€3,000” for “€1,265”, | ||
(k) in section 889— | ||
(i) in subsection (8) by substituting “€3,000” for “€1,520”, and | ||
(ii) by deleting subsection (9), | ||
(l) in section 895— | ||
(i) in subsection (4)(a) by substituting “€4,000” for “€2,535”, and | ||
(ii) by substituting the following for subsection (4)(b): | ||
“(b) Where a resident— | ||
(i) fails to furnish details of the kind referred to in subsection (2) to an intermediary who has provided the resident with a relevant service, or | ||
(ii) furnishes that intermediary with incorrect details of that kind, | ||
the resident shall be liable to a penalty of €4,000.”, | ||
and | ||
(iii) by deleting subsection (5), | ||
(m) in section 896— | ||
(i) in subsection (3) by substituting “€4,000” for “€1,900”, and | ||
(ii) by substituting the following for subsection (4): | ||
“(4) Where a person— | ||
(a) fails to furnish details of the kind referred to in subsection (2) to an intermediary who has provided the person with relevant facilities, or | ||
(b) furnishes that intermediary with incorrect details of that kind, | ||
the person shall be liable to a penalty of €4,000.”, | ||
(n) in section 898N— | ||
(i) in subsection (3) by substituting “€3,000” for “€1,265”, and | ||
(ii) in subsection (9) by substituting “€3,000” for “€1,265”, | ||
(o) in section 898Q— | ||
(i) in subsection (5)(a) by substituting “€3,000” for “€1,520”, | ||
(ii) in subsection (5)(b) by substituting “€3,000” for “€950”, and | ||
(iii) by deleting subsection (5)(c), | ||
(p) in section 900(7) by substituting “€4,000” for “€1,900”, | ||
(q) in section 902(11) by substituting “€4,000” for “€1,900”, | ||
(r) in section 903(5) by substituting “€4,000” for “€1,265”, | ||
(s) in section 904(5) by substituting “€4,000” for “€1,265”, | ||
(t) in section 905(3) by substituting “€4,000” for “€1,265”, | ||
(u) in section 917A— | ||
(i) in subsection (4) by substituting “€4,000” for “€2,535”, and | ||
(ii) by deleting subsection (5), | ||
(v) in section 917B— | ||
(i) by substituting the following for subsection (5): | ||
“(5) Where a person fails— | ||
(a) to make a statement required to be made by the person in accordance with subsection (2), or | ||
(b) to include in such a statement the details referred to in subsection (2), | ||
then the person shall in respect of each such failure be liable to a penalty of €4,000.”, | ||
and | ||
(ii) by deleting subsection (6), | ||
(w) in section 917C— | ||
(i) by substituting the following for subsection (3): | ||
“(3) Where a person fails— | ||
(a) to make a statement required to be made by the person in accordance with subsection (2), or | ||
(b) to include in such a statement the details referred to in subsection (2), | ||
then the person shall in respect of each such failure be liable to a penalty of €4,000.”, | ||
and | ||
(ii) by deleting subsection (4), | ||
(x) in section 939(3) by substituting “€3,000” for “€950”, | ||
(y) in section 987— | ||
(i) by substituting the following for subsection (1): | ||
“(1) Where any person fails— | ||
(a) to comply with any provision of regulations under this Chapter requiring that person to send any return, statement, notification or certificate, other than the end of year return required under Regulation 31 of the Income Tax (Employments) (Consolidated) Regulations 2001 ( S.I. No. 559 of 2001 ), | ||
(b) to remit income tax to the Collector-General, or | ||
(c) to make any deduction or repayment in accordance with any regulation made pursuant to section 986(1)(g), | ||
then that person shall be liable to a penalty of €4,000”, | ||
(ii) in subsection (1A)— | ||
(I) by substituting “€1,000” for “€630”, and | ||
(II) by substituting “€4,000” for “€2,535”, | ||
(iii) in subsection (2) by substituting “€3,000” for “€950”, and | ||
(iv) by deleting subsection (3), | ||
(z) by substituting the following for section 1047: | ||
“Liability of parents, guardians, executors and administrators. | ||
1047.— (1) Where an individual chargeable to income tax dies, the executor or administrator of the deceased person shall be liable for— | ||
(a) the tax charged on such deceased individual, | ||
(b) the interest on late payment of tax in respect of which the deceased individual is liable, and | ||
(c) any penalties in respect of which the deceased individual is liable, | ||
and all such sums shall be a debt on the estate of the deceased individual and an executor or administrator may deduct all such payments out of the assets and effects of the person deceased. | ||
(2) Where an individual chargeable to income tax is an infant, the parent or guardian of the infant shall be liable for the tax in default of payment by the infant and a parent or guardian who makes such payment shall be allowed all sums so paid in his or her accounts.”; | ||
(aa) in section 1052— | ||
(i) in subsection (1) by substituting “€3,000” for “€950”, | ||
(ii) in subsection (2) by substituting “€4,000” for “€1,520.”, and | ||
(iii) in subsection (4) by substituting “under this section, under section 1053 or under section 1077E” for “under this section or under section 1053”, | ||
(ab) in section 1053 by inserting the following after subsection (7): | ||
“(8) This section shall not apply in respect of any acts or omissions arising after the passing of the Finance (No. 2) Act 2008.”, | ||
(ac) by substituting the following for section 1054— | ||
“Penalties in the case of a secretary of a body of persons. | ||
1054.— (1) In this section, ‘secretary’ includes persons mentioned in section 1044(2). | ||
(2) Where the person mentioned in section 1052 is a body of persons the secretary shall be liable to— | ||
(a) in a case where the notice was given under or for the purposes of any of the provisions specified in column 1 of Schedule 29 and the failure continues after the end of the year of assessment or accounting period following that during which the notice was given, a separate penalty of €2,000, and | ||
(b) in any other case, a separate penalty of €1,000. | ||
(3) Where the person mentioned in section 1053 or 1077E is a body of persons the secretary shall be liable to a separate penalty of €1,500 or, in the case of deliberate behaviour, €3,000. | ||
(4) This section shall apply subject to sections 877(5)(b) and 897(5), but otherwise shall apply notwithstanding anything in the Income Tax Acts.”, | ||
(ad) by substituting the following for section 1055— | ||
“1055.— Any person who deliberately assists in or induces the making or delivery for any purposes of income tax or corporation tax of any incorrect return, account, statement or declaration shall be liable to a penalty of €4,000.”, | ||
(ae) in section 1057 by inserting the following after subsection (2): | ||
“(3) This section shall not apply in respect of any acts arising after the passing of the Finance (No. 2) Act 2008.”, | ||
(af) in section 1058(1) by substituting “€3,000” for “€60”, | ||
(ag) in section 1060 by inserting the following after subsection (2): | ||
“(3) This section shall cease to have effect after the passing of the Finance (No. 2) Act 2008.”, | ||
(ah) in section 1061 by inserting the following after subsection (6): | ||
“(7) This section shall not apply in respect of any acts or omissions arising after the passing of the Finance (No. 2) Act 2008.”, | ||
(ai) in section 1063 by substituting “subject to section 1060 or section 1077D” for “subject to section 1060”, | ||
(aj) in section 1068 by substituting “For the purposes of this Chapter, Chapter 3A and Chapter 3B of this Part, and Chapter 4 of Part 38,” for “For the purposes of this Chapter, and Chapter 4 of Part 38,”, | ||
(ak) in section 1069 by substituting the following for subsection (2)— | ||
“(2) For the purposes of this Chapter, Chapter 3A and Chapter 3B of this Part, any assessment which can no longer be varied by the Appeal Commissioners on appeal or by the order of any court shall be sufficient evidence that— | ||
(a) the income in respect of which income tax or, as the case may be, corporation tax, or | ||
(b) the gain in respect of which capital gains tax, | ||
is charged in the assessment arose or was received as stated in the assessment.”, | ||
(al) in section 1071— | ||
(i) in subsection 1(a), by substituting “€2,000” for “€630”, | ||
(ii) in subsection 1(b), by substituting “€1,000” for “€125”, and | ||
(iii) in subsection (2)— | ||
(I) by substituting “€4,000” for “€1,265”, and | ||
(II) by substituting “€2,000” for “€250”, | ||
(am) in section 1072 by inserting the following after subsection (3): | ||
“(4) This section shall not apply in respect of any acts or omissions arising after the passing of the Finance (No. 2) Act 2008.”, | ||
(an) in section 1073— | ||
(i) in subsection 1(a) by substituting “€4,000” for “€630”, and | ||
(ii) in subsection 1(b) by substituting “€3,000” for “€125”, | ||
(ao) in section 1074— | ||
(i) in paragraph (a) by substituting “€4,000” for “€630”, and | ||
(ii) in paragraph (b) by substituting “€3,000” for “€125”, | ||
(ap) by substituting the following for section 1075: | ||
“Penalties for failure to furnish certain information and for incorrect information. | ||
1075.— (1) Where any person has been required by notice given under or for the purposes of section 401 or 427 or Part 13 to furnish any information or particulars and that person fails to comply with the notice, that person shall be liable, subject to subsection (3), to a penalty of €3,000 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of €10 for each day on which the failure so continues. | ||
(2) Where the person furnishes any incorrect information or particulars of a kind mentioned in section 239, 401 or 427 or Part 13, the person shall be liable, subject to subsection (4), to a penalty of €3,000. | ||
(3) Where the person mentioned in subsection (1) is a company— | ||
(a) the company shall be liable to a penalty of €4,000 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of €60 for each day on which the failure so continues, and | ||
(b) the secretary of the company shall be liable to a separate penalty of €3,000. | ||
(4) Where the person mentioned in subsection (2) is a company— | ||
(a) the company shall be liable to a penalty of €4,000, and | ||
(b) the secretary of the company shall be liable to a separate penalty of €3,000. | ||
(5) Subsection (3) of section 1053 and subsection (9) of section 1077E shall apply for the purposes of this section as it applies for the purposes of section 1053 and of section 1077E.”, | ||
(aq) in Chapter 3 of Part 47, by substituting the following for section 1077: | ||
“Penalties for failure to make returns, etc. and for deliberately or carelessly making incorrect returns. | ||
1077.— (1) Without prejudice to the generality of section 913(1), Chapter 1 and Chapter 3B of this Part shall, subject to any necessary modifications, apply in relation to capital gains tax, and sections 1052, 1053, 1054 and 1077E, as applied by this section, shall for the purposes of the Capital Gains Tax Acts be construed as if in Schedule 29 there were included— | ||
(a) in column 1, references to sections 914 to 917, | ||
(b) in column 2, a reference to section 945, and | ||
(c) in column 3, a reference to section 980. | ||
(2) Where any person has been required by notice or precept given under the provisions of the Income Tax Acts as applied by section 913, or under section 914, 915, 916, 917 or 980, to do any act of a kind mentioned in any of those provisions or sections, and the person fails to comply with the notice or precept, or where any person deliberately or carelessly makes, delivers, furnishes or produces any incorrect return, statement, declaration, list, account, particulars or other document (or makes any false statement or false representation) under any of those provisions or sections, Chapter 1 and Chapter 3B of this Part shall apply to the person for the purposes of capital gains tax as it applies in the case of a like failure or act for the purposes of income tax.”, | ||
(ar) in section 1078(9)— | ||
(i) by inserting “subsections (9) and (17) of section 1077E,” after “section 1053”, and | ||
(ii) by substituting “, and section 27A(16) of the Value-Added Tax Act 1972 ,” for “and sections 26(6) and 27(7) of the Value-Added Tax Act, 1972 ,”, | ||
(as) in section 1086— | ||
(i) in subsection (2)— | ||
(I) in paragraph (a), by inserting “or determined” after “imposed”, | ||
(II) in paragraph (b), by inserting “or determined” after “imposed”, | ||
(III) in paragraph (d), by inserting “or determined” after “imposed”, | ||
(ii) by substituting the following for subsection (2A): | ||
“(2A) For the purposes of subsection (2), the reference to a specified sum in paragraphs (c) and (d) of that subsection includes a reference to a sum which is the full amount of the claim by the Revenue Commissioners in respect of the specified liability referred to in those paragraphs. Where the Revenue Commissioners accept or undertake to accept such a sum, being the full amount of their claim, then— | ||
(a) they shall be deemed to have done so pursuant to an agreement, made with the person referred to in paragraph (c), whereby they refrained from initiating proceedings for the recovery of any fine or penalty of the kind mentioned in paragraphs (a) and (b) of subsection (2), and | ||
(b) that agreement shall be deemed to have been made in the relevant period in which the Revenue Commissioners accepted or undertook to accept that full amount.”, | ||
(iii) in subsection (4) by substituting the following for paragraph (a): | ||
“(a) the Revenue Commissioners are satisfied that, before any investigation or inquiry had been started by them or by any of their officers into any matter occasioning a liability referred to in those paragraphs, the person had voluntarily furnished to them a qualifying disclosure (within the meaning of section 1077E, section 27A of the Value-Added Tax Act 1972 or section 134A of the Stamp Duties Consolidation Act 1999 , as the case may be) in relation to and full particulars of that matter,”, | ||
(iv) by inserting the following after subsection (4A): | ||
“(4B) Paragraphs (a) and (b) of subsection (2) shall not apply in relation to a person in whose case— | ||
(a) the amount of a penalty determined by a court does not exceed 15 per cent of, as appropriate— | ||
(i) the amount of the difference referred to in subsection (11) or (12), as the case may be, of section 1077E, | ||
(ii) the amount of the difference referred to in subsection (11) or (12), as the case may be, of section 27A of the Value-Added Tax Act 1972 , or | ||
(iii) the amount of the difference referred to in subsection (7), (8) or (9), as the case may be, of section 134A of the Stamp Duties Consolidation Act 1999 , | ||
(b) the aggregate of the— | ||
(i) the tax due in respect of which the penalty is computed, | ||
(ii) except in the case of tax due by virtue of paragraphs (g) and (h) of the definition of ‘ the Acts ’, interest on that tax, and | ||
(iii) the penalty determined by a court, | ||
does not exceed €30,000, or | ||
(c) there has been a qualifying disclosure.”, | ||
(v) in subsection (5)— | ||
(I) in paragraph (a), by inserting “or determined” after “imposed”, | ||
and | ||
(II) in paragraph (b), by inserting “or determined” after “imposed”, | ||
(vi) in subsection (5A)(a), by inserting “or determined” after “imposed”, | ||
(at) in section 1091 by substituting the following for subsection (3): | ||
“(3) Where a company fails to comply with any of the provisions of subsection (2), the company shall incur a penalty of €200 in respect of each failure, but the aggregate amount of the penalties imposed under this section on any company in respect of all such failures connected with any one distribution of dividends or interest shall not exceed €2,000.”. | ||
(au) in Schedule 29 by substituting “Provisions Referred to in Sections 1052, 1054 and 1077E” for “Provisions Referred to in Sections 1052, 1053 and 1054”, | ||
(av) in Schedule 32, in subparagraph (3)(b) of paragraph 7, by substituting “sections 1052, 1054 and 1077E” for “sections 1052, 1053 and 1054”. | ||
|
PART 3 Value-Added Tax: Penalties | ||
3. The Value-Added Tax Act 1972 is amended— | ||
(a) in section 26— | ||
(i) by substituting— | ||
(I) “€4,000” for “€1,520” in both places where it occurs, | ||
(II) “€4,000” for “€950” in each place where it occurs, and | ||
(III) “€4,000” for “€1,265” in both places where it occurs, | ||
and | ||
(ii) by deleting subsections (4), (6) and (7), | ||
(b) by deleting section 27, | ||
(c) by inserting the following before section 28: | ||
“Penalty for deliberately or carelessly making incorrect returns, etc. | ||
27A.— (1) In this section— | ||
‘ carelessly ’ means failure to take reasonable care; | ||
‘ liability to tax ’ means a liability to the amount of the difference specified in subsection (11) or (12) arising from any matter referred to in subsection (2), (3), (5) or (6); | ||
‘ period ’ means taxable period, accounting period or other period, as the context requires; | ||
‘ prompted qualifying disclosure ’, in relation to a person, means a qualifying disclosure that has been made to the Revenue Commissioners or to a Revenue officer in the period between— | ||
(a) the date on which a person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, and | ||
(b) the date that the investigation or inquiry starts; | ||
‘ qualifying disclosure ’, in relation to a person, means— | ||
(a) in relation to a penalty referred to in subsection (4), a disclosure that the Revenue Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (4), and full particulars of all matters occasioning any liability to tax or duty that gives rise to a penalty referred to in section 1077E(4) of the Taxes Consolidation Act 1997 , section 134A(2) of the Stamp Duties Consolidation Act 1999 and the application of section 1077E(4) of the Taxes Consolidation Act 1997 to the Capital Acquisitions Tax Consolidation Act 2003 , and | ||
(b) in relation to a penalty referred to in subsection (7), a disclosure that the Revenue Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (7) for the relevant period, | ||
made in writing to the Revenue Commissioners or to a Revenue officer and signed by or on behalf of that person and that is accompanied by— | ||
(i) a declaration, to the best of that person’s knowledge, information and belief, made in writing that all matters contained in the disclosure are correct and complete, and | ||
(ii) a payment of the tax and duty payable in respect of any matter contained in the disclosure and the interest on late payment of that tax and duty; | ||
‘ Revenue officer ’ means an officer of the Revenue Commissioners; | ||
‘unprompted qualifying disclosure’ , in relation to a person, means a qualifying disclosure that the Revenue Commissioners are satisfied has been voluntarily furnished to them— | ||
(a) before an investigation or inquiry had been started by them or by a Revenue officer into any matter occasioning a liability to tax of that person, or | ||
(b) where the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, before that notification. | ||
(2) Where a person furnishes a return or makes a claim or declaration for the purposes of this Act or of regulations made under it and, in so doing, the person deliberately, furnishes an incorrect return, or makes an incorrect claim or declaration, then that person shall be liable to a penalty. | ||
(3) Where a person deliberately fails to comply with a requirement in accordance with this Act or regulations to furnish a return, then that person shall be liable to a penalty. | ||
(4) The penalty referred to— | ||
(a) in subsection (2), shall be the amount specified in subsection (11), and | ||
(b) in subsection (3), shall be the amount specified in subsection (12), | ||
reduced, where the person liable to the penalty cooperated fully with any investigation or inquiry started by the Revenue Commissioners or by a Revenue officer into any matter occasioning a liability to tax of that person, to— | ||
(i) 75 per cent of that amount where paragraph (ii) or (iii) does not apply, | ||
(ii) 50 per cent of that amount where a prompted qualifying disclosure is made by that person, or | ||
(iii) 10 per cent of that amount where an unprompted qualifying disclosure has been made by that person. | ||
(5) Where a person furnishes a return or makes a claim or declaration for the purposes of this Act or of regulations made under it and, in so doing, the person carelessly, but not deliberately, furnishes an incorrect return or makes an incorrect claim or declaration, then that person shall be liable to a penalty. | ||
(6) Where a person carelessly but not deliberately fails to comply with a requirement in accordance with this Act or regulations to furnish a return, then that person shall be liable to a penalty. | ||
(7) (a) The penalty referred to— | ||
(i) in subsection (5) shall be the amount specified in subsection (11), and | ||
(ii) in subsection (6) shall be the amount specified in subsection (12), | ||
reduced to 40 per cent in cases where the excess referred to in subparagraph (I) of paragraph (b) applies and to 20 per cent in other cases. | ||
(b) Where the person liable to the penalty cooperated fully with any investigation or inquiry started by the Revenue Commissioners or by a Revenue officer into any matter occasioning a liability to tax of that person, the penalty referred to— | ||
(i) in subsection (5) shall be the amount specified in subsection (11), and | ||
(ii) in subsection (6) shall be the amount specified in subsection (12), | ||
reduced— | ||
(I) where the difference referred to in subsection (11) or (12), as the case may be, exceeds 15 per cent of the amount referred to in paragraph (b) of subsection (11) or paragraph (b) of subsection (12), to— | ||
(A) 30 per cent of that difference where clause (B) or (C) does not apply, | ||
(B) 20 per cent of that difference where a prompted qualifying disclosure is made by that person, or | ||
(C) 5 per cent of that difference where an unprompted qualifying disclosure is made by that person, | ||
or | ||
(II) where the difference referred to in subsection (11) or (12), as the case may be, does not exceed 15 per cent of the amount referred to in paragraph (b) of subsection (11) or paragraph (b) of subsection (12) to— | ||
(A) 15 per cent of that difference where clause (B) or (C) does not apply, | ||
(B) 10 per cent of that difference where a prompted qualifying disclosure is made by that person, or | ||
(C) 3 per cent of that difference where an unprompted qualifying disclosure is made by that person. | ||
(8) Where, for the purposes of this Act or of regulations, a person deliberately or carelessly produces, furnishes, gives, sends or otherwise makes use of, any incorrect invoice, registration number, credit note, debit note, receipt, account, voucher, bank statement, estimate, statement, information, book, document or record, then that person shall be liable to— | ||
(a) a penalty of €3,000 where that person has acted carelessly, or | ||
(b) a penalty of €5,000 where that person has acted deliberately. | ||
(9) Where any return, claim or declaration as is mentioned in subsection (2) or (5) was furnished or made by a person, neither deliberately nor carelessly, and it comes to that person’s notice that it was incorrect, then, unless the error is remedied without unreasonable delay, the return, claim or declaration shall be treated for the purposes of this section as having been deliberately made or submitted by that person. | ||
(10) Subject to section 1077D(2) of the Taxes Consolidation Act 1997 , proceedings or applications for the recovery of any penalty under this section shall not be out of time by reason that they are commenced after the time allowed by section 30. | ||
(11) The amount referred to in paragraph (a) of subsection (4) and in paragraph (a)(i) of subsection (7) shall be the difference between— | ||
(a) the amount of tax (if any) paid or claimed by the person concerned for the relevant period on the basis of the incorrect return, claim or declaration as furnished or otherwise made, and | ||
(b) the amount properly payable by, or refundable to, that person for that period. | ||
(12) The amount referred to in paragraph (b) of subsection (4) and in paragraph (b)(ii) of subsection (7) shall be the difference between— | ||
(a) the amount of tax (if any) paid by that person for the relevant period before the start by the Revenue Commissioners or by any Revenue officer of any inquiry or investigation where the Revenue Commissioners had announced publicly that they had started an inquiry or investigation or where the Revenue Commissioners have, or a Revenue officer has, carried out an inquiry or investigation in respect of any matter that would have been included in the return if the return had been furnished by that person and the return had been correct, and | ||
(b) the amount of tax properly payable by that person for that period. | ||
(13) Where a second qualifying disclosure is made by a person within 5 years of such person’s first qualifying disclosure, then as regards matters pertaining to that second disclosure— | ||
(a) in relation to subsection (4)— | ||
(i) paragraph (ii) shall apply as if ‘75 per cent’ were substituted for ‘50 per cent’, and | ||
(ii) paragraph (iii) shall apply as if ‘55 per cent’ were substituted for ‘10 per cent’, | ||
and | ||
(b) in relation to subparagraph (I) of subsection (7)(b)— | ||
(i) clause (B) shall apply as if ‘30 per cent’ were substituted for ‘20 per cent’, and | ||
(ii) clause (C) shall apply as if ‘20 per cent’ were substituted for ‘5 per cent’. | ||
(14) Where a third or subsequent qualifying disclosure is made by a person within 5 years of such person’s second qualifying disclosure, then as regards matters pertaining to that third or subsequent disclosure, as the case may be— | ||
(a) the penalty referred to in paragraphs (a) and (b) of subsection (4) shall not be reduced, and | ||
(b) the reduction referred to in subparagraph (I) of subsection (7)(b) shall not apply. | ||
(15) A disclosure in relation to a person shall not be a qualifying disclosure where— | ||
(a) before the disclosure is made, a Revenue officer had started an inquiry or investigation into any matter contained in that disclosure and had contacted or notified that person, or a person representing that person, in this regard, or | ||
(b) matters contained in the disclosure are matters— | ||
(i) that have become known, or are about to become known, to the Revenue Commissioners through their own investigations or through an investigation conducted by a statutory body or agency, | ||
(ii) that are within the scope of an inquiry being carried out wholly or partly in public, or | ||
(iii) to which the person who made the disclosure is linked, or about to be linked, publicly. | ||
(16) For the purposes of this section, any return, claim or declaration submitted on behalf of a person shall be deemed to have been submitted by that person unless that person proves that it was submitted without that person’s consent or knowledge. | ||
(17) Where a person mentioned in subsection (2), (3), (5) or (6) is a body of persons the secretary shall be liable to a separate penalty of €1,500 or, in the case of deliberate behaviour, €3,000. | ||
(18) If a person, in a case in which that person represents that he or she is a registered person or that goods imported by him or her were so imported for the purposes of a business carried on by him or her, improperly procures the importation of goods without payment of tax in circumstances in which tax is chargeable, then that person shall be liable to a penalty of €4,000 and, in addition, that person shall be liable to pay to the Revenue Commissioners the amount of any tax that should have been paid on the importation. | ||
(19) If a person acquires goods without payment of value-added tax (as referred to in Council Directive No. 2006/112/EC of 28 November 2006 1 ) in another Member State as a result of the declaration of an incorrect registration number, that person shall be liable to a penalty of €4,000 and, in addition, that person shall be liable to pay to the Revenue Commissioners an amount equal to the amount of tax which would have been chargeable on an intra-Community acquisition of those goods if that declaration had been the declaration of a correct registration number. | ||
(20) Where, in pursuance of regulations made for the purposes of section 13(1)(a), tax on the supply of any goods has been remitted or repaid and— | ||
(a) the goods are found in the State after the date on which they were alleged to have been or were to be exported, or | ||
(b) any condition specified in the regulations or imposed by the Revenue Commissioners is not complied with, | ||
and the presence of the goods in the State after that date or the non-compliance with the condition has not been authorised for the purposes of this subsection by the Revenue Commissioners, then the goods shall be liable to forfeiture and the tax which was remitted or repaid shall be charged upon and become payable forthwith by the person to whom the goods were supplied or any person in whose possession the goods are found in the State and the provisions of sections 960I(1), 960J, 960L and 960N of the Taxes Consolidation Act 1997 shall apply accordingly, but the Revenue Commissioners may, if they think fit, waive payment of the whole or part of that tax. | ||
(21) (a) Where goods— | ||
(i) were supplied at the rate of zero per cent subject to the condition that they were to be dispatched or transported outside the State in accordance with subparagraph (a), (b) or (c) of paragraph (i) of the Second Schedule and the goods were not so dispatched or transported, | ||
(ii) were acquired without payment of value-added tax referred to in Council Directive No. 2006/112/EC of 28 November 2006 2 in another Member State as a result of the declaration of an incorrect registration number, | ||
(iii) were acquired in another Member State and those goods are new means of transport in respect of which the acquirer— | ||
(I) makes an intra-Community acquisition in the State, | ||
(II) is not entitled to a deduction under section 12 in respect of the tax chargeable on that acquisition, and | ||
(III) fails to account for the tax due on that acquisition in accordance with section 19, | ||
or | ||
(iv) are being supplied by an accountable person who has not complied with the provisions of section 9(2), | ||
then those goods shall be liable to forfeiture. | ||
(b) Whenever an officer authorised by the Revenue Commissioners reasonably suspects that goods are liable to forfeiture in accordance with paragraph (a) the goods may be detained by the said officer until such examination, inquiries or investigations as may be deemed necessary by the said officer, or by another authorised officer of the Revenue Commissioners, have been made for the purpose of determining to the satisfaction of either officer whether or not the goods were so supplied or acquired. | ||
(c) When a determination referred to in paragraph (b) has been made in respect of any goods, or upon the expiry of a period of two months from the date on which the said goods were detained under the said subsection, whichever is the earlier, the said goods shall be seized as liable to forfeiture or released. | ||
(d) For the purposes of this section ‘the declaration of an incorrect registration number’ means— | ||
(i) the declaration by a person of another person’s registration number, | ||
(ii) the declaration by a person of a number which is not an actual registration number which that person purports to be his or her registration number, | ||
(iii) the declaration by a person of a registration number which is cancelled, | ||
(iv) the declaration by a person of a registration number which was obtained from the Revenue Commissioners by supplying incorrect information, or | ||
(v) the declaration by a person of a registration number which was obtained from the Revenue Commissioners for the purposes of acquiring goods without payment of value-added tax referred to in Council Directive No. 2006/112/EC of 28 November 2006 3 , and not for any bona fide business purpose. | ||
(22) The provisions of the Customs Acts relating to forfeiture and condemnation of goods shall apply to goods liable to forfeiture under subsection (20) or (21) as if they had become liable to forfeiture under those Acts and all powers which may be exercised by an officer of Customs and Excise under those Acts may be exercised by officers of the Revenue Commissioners authorised to exercise those powers for the purposes of the said subsections and any provisions in relation to offences under those Acts shall apply, with any necessary modifications, in relation to the said subsections. | ||
(23) Where an officer authorised by the Revenue Commissioners for the purposes of this subsection or a member of the Garda Síochána has reasonable grounds for suspecting that a criminal offence has been committed under the provisions of section 1078 of the Taxes Consolidation Act 1997 , in relation to tax, by a person who is not established in the State, or whom that officer believes is likely to leave the State, that officer may arrest that person.”, | ||
(d) in section 28 by substituting “€4,000” for “€950”, | ||
(e) by deleting section 29, and | ||
(f) in section 30 by deleting subsections (2) and (3). | ||
|
PART 4 Capital Acquisitions Tax: Penalties | ||
4. The Capital Acquisitions Tax Consolidation Act 2003 is amended— | ||
(a) by deleting section 25, and | ||
(b) in section 58— | ||
(i) by substituting “€3,000” for “€2,535” in subsections (1)(a) and (1A)(a), | ||
(ii) by substituting “€3,000” for “€1,265” in subsection (2), | ||
(iii) by inserting “deliberately or carelessly” before “fails” and by deleting “, by reason of fraud or neglect by that person,” in subsection (1A), | ||
(iv) by substituting “deliberately or carelessly” for “fraudulently or negligently” in subsection (3), | ||
(v) by substituting “deliberately nor carelessly” for “fraudulently nor negligently” and “carelessly” for “negligently” in subsection (4), | ||
(vi) by substituting “€3,000” for “€1,265” in subsection (7), and | ||
(vii) by substituting the following for subsection (9): | ||
“(9) Subject to this section— | ||
(a) sections 987(4), 1062, 1063, 1064, 1065, 1066 and 1068 of the Taxes Consolidation Act 1997 shall, with any necessary modifications, apply to a penalty under this Act as if the penalty were a penalty under the Income Tax Acts, and | ||
(b) section 1077E (inserted by the Finance (No. 2) Act 2008) of the Taxes Consolidation Act 1997 shall, with any necessary modifications, apply to a penalty under this Act as if the penalty were a penalty relating to income tax, corporation tax or capital gains tax, as the case may be.”. | ||
|
PART 5 Stamp Duties | ||
Chapter 1 | ||
Penalties | ||
5. The Stamp Duties Consolidation Act 1999 is amended— | ||
(a) in section 8— | ||
(i) in subsection (3) by substituting “Any person who before the passing of the Finance (No. 2) Act 2008” for “Any person who”, | ||
(ii) by inserting the following after subsection (4): | ||
“(4A) Any person who, on or after the passing of the Finance (No. 2) Act 2008, being employed or concerned in or about the preparation of any instrument, prepares any such instrument in which all the facts and circumstances, of which the person is aware, affecting the liability of such instrument to duty, or the amount of the duty with which such instrument is chargeable, are not fully and truly set forth in the instrument or in any statement to which subsection (2) relates, shall incur a penalty of €3,000.”, | ||
(iii) in subsection (5)— | ||
(I) by substituting “subsection (3) of this section or section 134A(2)(a), as the case may be,” for “subsection (3)”, and | ||
(II) by substituting “negligently or deliberately, as the case may be,” for “negligently”, and | ||
(iv) in subsection (6) by substituting “subsection (3) or subsection (2)(a) or (4)(a) of section 134A, as the case may be,” for “subsection (3)”, | ||
(b) in section 16(2)— | ||
(i) by substituting “section 8(3) or 134A(2)(a), as the case may be,” for “section 8(3)”, and | ||
(ii) by substituting “negligently or deliberately, as the case may be,” for “negligently”, | ||
(c) in section 76— | ||
(i) in subsection (3) by substituting “Where a system-member, before the passing of the Finance (No. 2) Act 2008,” for “Where a system-member”, and | ||
(ii) in subsection (5) by substituting “subsection (3) of this section or section 134A(2)(b), as the case may be,” for “subsection (3)”, and | ||
(d) by inserting the following after section 134: | ||
“Penalties. | ||
134A.— (1) In this section— | ||
‘ carelessly ’ means failure to take reasonable care; | ||
‘ liability to duty ’ means a liability to the amount of the difference specified in subsection (7), (8) or (9) arising from any matter referred to in subsections (2) and (4); | ||
‘ instruction ’, ‘relevant system’ and ‘system-member’ have each the same meaning as they have, respectively, in section 68(2); | ||
‘ person ’ means— | ||
(a) for the purposes of subsections (2)(b) and (4)(b), a system-member, and | ||
(b) for the purposes of subsections (2)(c) and (4)(c), an accountable person where an electronic return or a paper return is caused to be delivered, or is delivered, to the Commissioners; | ||
‘ prompted qualifying disclosure ’, in relation to a person, means a qualifying disclosure that has been made to the Commissioners or to a Revenue officer in the period between— | ||
(a) the date on which the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to duty of that person will start, and | ||
(b) the date that the investigation or inquiry starts; | ||
‘ qualifying disclosure ’, in relation to a person, means— | ||
(a) in relation to a penalty referred to in subsection (3), a disclosure that the Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to duty that gives rise to a penalty referred to in subsection (3), and full particulars of all matters occasioning any liability to tax that gives rise to a penalty referred to in section 1077E(4) of the Taxes Consolidation Act 1997 , section 27A(4) of the Value-Added Tax Act 1972 and the application of section 1077E(4) of the Taxes Consolidation Act 1997 to the Capital Acquisitions Tax Consolidation Act 2003 , and | ||
(b) in relation to a penalty referred to in subsection (5), a disclosure that the Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to duty that gives rise to a penalty referred to in subsection (5), | ||
made in writing to the Commissioners or to a Revenue officer and signed by or on behalf of that person and that is accompanied by— | ||
(i) a declaration, to the best of that person’s knowledge, information and belief, made in writing that all matters contained in the disclosure are correct and complete, and | ||
(ii) a payment of the tax and duty payable in respect of any matter contained in the disclosure and the interest on late payment of that tax and duty; | ||
‘ Revenue officer ’ means an officer of the Commissioners; | ||
‘unprompted qualifying disclosure’ , in relation to a person, means a qualifying disclosure that the Revenue Commissioners are satisfied has been voluntarily furnished to them— | ||
(a) before an investigation or inquiry had been started by them or by a Revenue officer into any matter occasioning a liability to duty of that person, or | ||
(b) where the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to duty of that person will start, before that notification. | ||
(2) Where any person deliberately— | ||
(a) executes any instrument in which all the facts and circumstances affecting the liability of such instrument to duty, or the amount of the duty with which such instrument is chargeable, are not fully and truly set forth in the instrument or in any statement to which section 8(2) relates, | ||
(b) enters or causes to be entered an incorrect instruction in a relevant system and such incorrect instruction gives rise to an underpayment of stamp duty, or results in a claim for exemption from duty to which there is no entitlement, or | ||
(c) causes an incorrect electronic return or a paper return to be delivered, or delivers an incorrect electronic return or a paper return, to the Commissioners which does not reflect all the facts and circumstances affecting the liability of such instrument to duty or the amount of the duty with which such instrument is chargeable that are required by the Commissioners to be disclosed on such return, | ||
then that person shall incur a penalty of €1,265 and a further penalty. | ||
(3) The further penalty referred to— | ||
(a) in subsection (2) in relation to paragraph (a) of that subsection, shall be the amount specified in subsection (7), | ||
(b) in subsection (2) in relation to paragraph (b) of that subsection, shall be the amount specified in subsection (8), and | ||
(c) in subsection (2) in relation to paragraph (c) of that subsection, shall be the amount specified in subsection (9), | ||
reduced, where the person who incurred the penalty co-operated fully with any investigation or inquiry started by the Commissioners or by a Revenue officer into any matter occasioning a liability to duty of that person, to— | ||
(i) 75 per cent of that amount where paragraph (ii) or (iii) does not apply, | ||
(ii) 50 per cent of that amount where a prompted qualifying disclosure has been made by the person, or | ||
(iii) 10 per cent of that amount where an unprompted qualifying disclosure has been made by the person. | ||
(4) Where any person carelessly but not deliberately— | ||
(a) executes any instrument in which all the facts and circumstances affecting the liability of such instrument to duty, or the amount of the duty with which such instrument is chargeable, are not fully and truly set forth in the instrument or in any statement to which section 8(2) relates, | ||
(b) enters or causes to be entered an incorrect instruction in a relevant system and such incorrect instruction gives rise to an underpayment of duty, or results in a claim for exemption from duty to which there is no entitlement, or | ||
(c) causes an incorrect electronic return or a paper return to be delivered, or delivers an incorrect electronic return or a paper return, to the Commissioners which does not reflect all the facts and circumstances affecting the liability of such instrument to duty or the amount of the duty with which such instrument is chargeable that are required by the Commissioners to be disclosed on such return, | ||
then that person shall incur a penalty of €1,265 and a further penalty. | ||
(5) (a) The further penalty referred to— | ||
(i) in subsection (4) in relation to paragraph (a) of that subsection, shall be the amount specified in subsection (7), | ||
(ii) in subsection (4) in relation to paragraph (b) of that subsection, shall be the amount specified in subsection (8), and | ||
(iii) in subsection (4) in relation to paragraph (c) of that subsection, shall be the amount specified in subsection (9), | ||
reduced to 40 per cent where the excess referred to in subparagraph (I) of paragraph (b) applies and to 20 per cent in other cases. | ||
(b) Where the person who incurred the penalty co-operated fully with any investigation or inquiry started by the Commissioners or by a Revenue officer into any matter occasioning a liability to duty of that person the further penalty referred to— | ||
(i) in subsection (4) in relation to paragraph (a) of that subsection, shall be the amount specified in subsection (7), | ||
(ii) in subsection (4) in relation to paragraph (b) of that subsection, shall be the amount specified in subsection (8), and | ||
(iii) in subsection (4) in relation to paragraph (c) of that subsection, shall be the amount specified in subsection (9), | ||
reduced— | ||
(I) where the amount of the difference referred to in subsection (7), (8) or (9), as the case may be, exceeds 15 per cent of the amount referred to in subsection (7)(b), (8)(b) or (9)(b), as the case may be, to— | ||
(A) 30 per cent of the amount of the difference (in clauses (B) and (C) referred to as ‘ that amount ’) where clause (B) or (C) does not apply, | ||
(B) 20 per cent of that amount where a prompted qualifying disclosure has been made by that person, or | ||
(C) 5 per cent of that amount where an unprompted qualifying disclosure has been made by that person, | ||
or | ||
(II) where the amount of the difference referred to in subsection (7), (8) or (9), as the case may be, does not exceed 15 per cent of the amount referred to in subsection (7)(b), (8)(b) or (9)(b), as the case may be, to— | ||
(A) 15 per cent of the amount of the difference (in clauses (B) and (C) referred to as ‘ that amount ’) where clause (B) or (C) does not apply, | ||
(B) 10 per cent of that amount where a prompted qualifying disclosure has been made by that person, or | ||
(C) 3 per cent of that amount where an unprompted qualifying disclosure has been made by that person. | ||
(6) Where any person neither deliberately nor carelessly— | ||
(a) executes an instrument and it comes to that person’s notice that the instrument or any statement to which section 8(2) relates does not fully and truly set forth all the facts and circumstances, | ||
(b) enters or causes to be entered an instruction in a relevant system and it comes to that person’s notice that the instruction was an incorrect instruction, or | ||
(c) causes to be delivered or delivers an electronic return or a paper return and it comes to that person’s notice that the electronic return or paper return does not reflect all the facts and circumstances that are required by the Commissioners to be disclosed on such return, | ||
then, unless the error is remedied without unreasonable delay, the person shall be treated for the purposes of this section as having acted deliberately. | ||
(7) The amount referred to in subsections (3)(a) and (5)(a) shall be the amount of the difference between— | ||
(a) the amount of duty payable in respect of the instrument based on the facts and circumstances set forth and delivered, and | ||
(b) the amount of the duty which would have been the amount so payable if the instrument and any accompanying statement had fully and truly set forth all the facts and circumstances referred to in subsections (1) and (2) of section 8. | ||
(8) The amount referred to in subsections (3)(b) and (5)(b) shall be the amount of the difference between— | ||
(a) the duty so paid (if any), and | ||
(b) the duty which would have been payable if the instruction had been entered correctly. | ||
(9) The amount referred to in subsections (3)(c) and (5)(c) shall be the amount of the difference between— | ||
(a) the amount of duty payable in respect of the instrument based on the facts and circumstances disclosed on such return, and | ||
(b) the amount of duty that would have been the amount so payable if all the facts and circumstances affecting the liability of such instrument to duty or the amount of the duty with which such instrument is chargeable, that are required to be disclosed on such return by the Commissioners, had been disclosed to them. | ||
(10) Where a second qualifying disclosure is made by a person within 5 years of such person’s first qualifying disclosure, then as regards matters pertaining to the second disclosure— | ||
(a) in relation to subsection (3)— | ||
(i) paragraph (ii) shall apply as if ‘75 per cent’ were substituted for ‘50 per cent’, and | ||
(ii) paragraph (iii) shall apply as if ‘55 per cent’ were substituted for ‘10 per cent’, and | ||
(b) in relation to subparagraph (I) of subsection (5)(b)— | ||
(i) clause (B) shall apply as if ‘30 per cent’ were substituted for ‘20 per cent’, and | ||
(ii) clause (C) shall apply as if ‘20 per cent’ were substituted for ‘5 per cent’. | ||
(11) Where a third or subsequent qualifying disclosure is made by a person within 5 years of such person’s second qualifying disclosure, then as regards matters pertaining to the third or subsequent disclosure, as the case may be— | ||
(a) the further penalty referred to in paragraphs (a), (b) and (c) of subsection (3) shall not be reduced, and | ||
(b) the reduction referred to in subparagraph (I) of subsection (5)(b) shall not apply. | ||
(12) A disclosure, in relation to a person, shall not be a qualifying disclosure where— | ||
(a) before the disclosure is made, a Revenue officer had started an inquiry or an investigation into any matter contained in that disclosure and had contacted or notified the person, or a person representing the person, in this regard, or | ||
(b) matters contained in the disclosure are matters— | ||
(i) that have become known or are about to become known, to the Commissioners through their own investigations or through an investigation conducted by a statutory body or agency, | ||
(ii) that are within the scope of an inquiry being carried out wholly or partly in public, or | ||
(iii) to which the person who made the disclosure is linked, or about to be linked, publicly.”. | ||
6. (a) Subject to subparagraph (b) of this paragraph, paragraph 5 of this Schedule (other than clauses (i) and (ii) of subparagraph (a) and subparagraph (c)(i)) has effect as respects penalties incurred on or after the passing of this Act. | ||
(b) Subsections (2)(c) and (4)(c) of section 134A (being inserted into the Stamp Duties Consolidation Act 1999 by subparagraph (d) of paragraph 5 of this Schedule) together with any references in that section relating to the said subsections (2)(c) and (4)(c) come into operation on such day or days as the Minister for Finance may by order or orders appoint and different days may be appointed for different purposes or different provisions. | ||
Chapter 2 | ||
Interest and Penalties | ||
7. The Stamp Duties Consolidation Act 1999 is amended— | ||
(a) in section 1 in the definition of “die” by substituting “or interest or penalty” for “or penalty”, | ||
(b) in section 2(4) by substituting “, any interest and penalty” for “and any penalty”, | ||
(c) in section 14— | ||
(i) in subsection (1)— | ||
(I) by deleting the words “of a penalty of €25”, and | ||
(II) by deleting the words “and also by means of further penalty”, | ||
(ii) in subsection (2)— | ||
(I) by substituting “interest” for “penalties”, and | ||
(II) by substituting “penalty” for “further penalty”, | ||
(iii) in subsection (3) by substituting “either or both, any interest and penalty” for “any penalty”, and | ||
(iv) in subsection (4) by substituting “interest and penalty” for “penalty”, | ||
(d) in section 45A(4)— | ||
(i) by substituting “an amount (in this subsection referred to as a ‘clawback’)” for “a penalty in an amount”, | ||
(ii) in paragraph (ii) by substituting “clawback” for “penalty”, and | ||
(iii) by substituting “clawback is remitted” for “penalty is remitted”, | ||
(e) in section 71— | ||
(i) in paragraph (b)(ii) by substituting “interest and penalty” for “penalty”, and | ||
(ii) in paragraph (d) by substituting “interest and penalty” for “penalties”, | ||
(f) in sections 79(7), 80(8) and 80A(8) by deleting “by means of penalty,”, | ||
(g) in section 81— | ||
(i) in subsection (7)— | ||
(I) in paragraph (a) by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty”, | ||
(II) in paragraph (aa) by substituting “clawback” for “penalty” in each place where it occurs, | ||
(III) in paragraph (ac) by substituting “clawback” for “penalty” in each place where it occurs and by substituting “clawbacks” for “penalties”, | ||
and | ||
(ii) in paragraphs (c) and (d) of subsection (8) by substituting “clawback under paragraph (a)” for “penalty under paragraph (a)”, | ||
(h) in section 81A— | ||
(i) in subsection (11)— | ||
(I) in paragraph (a) by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty”, | ||
(II) in paragraph (aa) by substituting “clawback” for “penalty” in each place where it occurs, and | ||
(III) in paragraph (ac) by substituting “clawback” for “penalty” in each place where it occurs and by substituting “clawbacks” for “penalties”, | ||
and | ||
(ii) in paragraphs (c) and (d) of subsection (12) by substituting “clawback under paragraph (a)” for “penalty under paragraph (a)”, | ||
(i) in section 81AA— | ||
(i) in subsection (12)— | ||
(I) in paragraph (a) by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty”, | ||
(II) in paragraph (b) by substituting “clawback” for “penalty” in each place where it occurs, and | ||
(III) in paragraph (d) by substituting “clawback” for “penalty” in each place where it occurs and by substituting “clawbacks” for “penalties”, | ||
and | ||
(ii) in paragraphs (c) and (d) of subsection (13) by substituting “clawback under paragraph (a)” for “penalty under paragraph (a)”, | ||
(j) in sections 81B and 81C— | ||
(i) in paragraph (a) of subsection (9) of each said section by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty of an amount” and “clawback” for “penalty”, and | ||
(ii) in subsection (10) of each said section— | ||
(I) in paragraph (b) by substituting “clawback or penalty under paragraph (a), (c) or (d), as the case may be,” for “penalty under paragraph (a), (c) or (d)”, | ||
(II) in paragraph (c) by substituting “clawback under paragraph (a)” for “penalty under paragraph (a)”, | ||
(III) in paragraph (d) by substituting “clawback or penalty under paragraph (a) or (d), as the case may be,” for “penalty under paragraph (a) or (d)”, and | ||
(IV) in paragraph (e) by substituting “clawback or penalty under paragraph (a) or (c), as the case may be,” for “penalty under paragraph (a) or (c)”, | ||
(k) in section 82B— | ||
(i) in subsections (4)(a) and (5) by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty”, | ||
(ii) in subsection (6) by substituting “clawback” for “penalty” in each place where it occurs, and | ||
(iii) in subsection (7) by substituting “clawback” for “penalty”, | ||
(l) in section 87(3) by deleting “, by means of further penalty,”, | ||
(m) in section 87A(4) by deleting “by means of further penalty,”, | ||
(n) in sections 91(2)(c)(i), 91A(6)(a), 92(2)(a) and 92B(4)(a)— | ||
(i) by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty”, and | ||
(ii) by substituting “the clawback” for “the penalty”, | ||
(o) in section 92B(5) by substituting “clawback” for “penalty” in each place where it occurs, | ||
(p) in section 108A— | ||
(i) in subsection (4) by substituting “an amount (in this section referred to as a ‘clawback’)” for “a penalty” and by substituting “the clawback” for “the penalty” in each place where it occurs, and | ||
(ii) in subsection (5) by substituting “clawback” for “penalty”, | ||
(q) in section 117(3) by deleting “by means of penalty”, | ||
(r) in sections 123(7), 123A(7) and 124(5)(b)— | ||
(i) by deleting “by means of penalty,”, and | ||
(ii) by substituting “penalty” for “further penalty”, | ||
(s) in section 123B(7)— | ||
(i) by deleting “by means of a penalty,”, and | ||
(ii) by substituting “penalty” for “further penalty”, | ||
(t) in sections 123C(8) and 124A(8)— | ||
(i) by deleting “by way of penalty,”, and | ||
(ii) by substituting “penalty” for “further penalty”, | ||
(u) in sections 123C(12) and 124A(12) by substituting “interest or penalty” for “penalty”, | ||
(v) in section 125(6) by deleting “by means of penalty and”, | ||
(w) in section 126(7) by deleting “by means of penalty,”, | ||
(x) in paragraphs (a) and (b) of section 126B(4) by substituting “interest and penalty” for “penalty”, | ||
(y) in section 127— | ||
(i) in subsection (1) by substituting “interest and penalty” for “and the penalty”, | ||
(ii) in subsection (2) by substituting “, interest and penalty” for “and penalty” in each place where it occurs, and | ||
(iii) in subsection (3)— | ||
(I) by substituting “, interest and penalty” for “or penalty”, and | ||
(II) by substituting “, interest and penalty” for “and penalty”, | ||
(z) in section 130(2) by substituting “interest and penalty” for “penalty” in each place where it occurs, | ||
and | ||
(aa) in section 156(3)(a) by substituting “interest or penalty” for “penalty”. | ||
8. As respects paragraph 7 of this Schedule— | ||
(a) subparagraphs (a) to (aa) (other than subparagraph (c)(i)(I)) of that paragraph have effect as on and from the passing of this Act and to the extent that Chapter 3A (being inserted into Part 47 of the Taxes Consolidation Act 1997 by Part 1 of this Schedule) applies to penalties incurred under the Stamp Duties Consolidation Act 1999 before the passing of this Act which on the passing of this Act have not been paid, it shall not apply to such penalties which are in the form of interest accrued under any provisions of the said Act, and | ||
(b) subparagraph (c)(i)(I) of that paragraph has effect as respects penalties incurred in respect of instruments executed on or after the passing of this Act. | ||
1OJ No. L 347 of 11 December 2006, p.1 |