Finance Act 2017
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Repayment of stamp duty where land used for residential development | ||
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61. The Principal Act is amended by inserting the following section after section 83C: | ||
“83D. (1) (a) In this section— | ||
‘appropriate part’, in relation to land, means the whole or, as the case may be, the part of the land to which the relevant residential development, the subject of a claim for repayment under this section, relates; | ||
‘building control authority’ has the meaning given to it by section 2 of the Building Control Act 1990 ; | ||
‘completion certificate’ means a Certificate of Compliance (within the meaning of article 5 of the Regulations of 1997)— | ||
(a) submitted on completion to a building control authority, and | ||
(b) the particulars of which are entered by that authority on the register maintained under Part IV of the Regulations of 1997, | ||
in accordance with article 20F of those Regulations; | ||
‘commencement notice’ means— | ||
(a) a commencement notice within the meaning of article 8, or | ||
(b) a 7 day notice (within the meaning of article 5 of the Regulations of 1997) required under article 20A of the Regulations of 1997, | ||
that is acknowledged by a building control authority in accordance with article 10(2) or 20A(3), as the case may be, of those Regulations; | ||
‘construction operations’, in relation to a residential development or relevant residential development, means the construction of buildings or structures including the preparatory operations of site clearance, drainage, earth-moving, excavation, laying of foundations and the provision of roadways and other access works; | ||
‘dwelling unit’ means— | ||
(a) a building or part of a building used or suitable for use as a dwelling, and | ||
(b) the curtilage of the dwelling, up to an area (exclusive of the site of the dwelling unit) of 0.4047 hectares; | ||
‘gross floor space’ in relation to a dwelling unit means the area ascertained by the internal measurement of the floor space on each floor of a building, including internal walls and partitions; | ||
‘land’, where used without qualification, means the land that is conveyed or transferred by an instrument; | ||
‘planning permission’ has the meaning given to it by section 2 of the Planning and Development Act 2000 ; | ||
‘Regulations of 1997’ means the Building Control Regulations 1997 ( S.I. No. 496 of 1997 ); | ||
‘residential development’ means the construction of one or more dwelling units and references to ‘relevant residential development’ shall be construed in accordance with paragraph (b). | ||
(b) References in this section to ‘relevant residential development’ shall be construed— | ||
(i) in a case in which a claim for a repayment under subsection (8) is, pursuant to subsection (7)(b), made in respect of such of the construction operations as for the time being are being carried out pursuant to a particular commencement notice, as references to the residential development that comprises those construction operations, or | ||
(ii) in either— | ||
(I) a case in which, as mentioned in subsection (7)(b), the making of a claim for repayment under subsection (8) is deferred until completion of the residential development concerned, or | ||
(II) a case in which the residential development concerned is not carried out in a phased manner, | ||
as references to the entire of the residential development concerned. | ||
(c) Without prejudice to subsection (4)(i), for the purposes of this section relevant residential development shall be regarded as completed if there exists in respect of the development a completion certificate. | ||
(2) In this section a reference to an instrument is a reference to an instrument executed on or after 11 October 2017 that has been stamped in accordance with paragraph (4) of the heading in Schedule 1 titled ‘CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance.’ where— | ||
(a) the instrument was chargeable to stamp duty at a rate of 6 per cent, and | ||
(b) the property so conveyed or transferred was land. | ||
(3) (a) Subject to subsection (18) and the other provisions of this section, stamp duty paid on an instrument may be repaid in accordance with this section in relation to the land if construction operations on the land commence pursuant to a commencement notice within the period of 30 months following the date of execution of the instrument. | ||
(b) If the residential development concerned is carried out in a phased manner such that there are 2 or more commencement notices in respect of the construction operations on the land, the reference in paragraph (a) to a commencement notice is a reference to the first of those commencement notices. | ||
(c) Notwithstanding paragraph (a), the stamp duty repaid under this section shall be liable to the clawback provided for in subsection (12) if— | ||
(i) the relevant residential development specified in a commencement notice is not completed within the period of 2 years after the date of the sending by a building control authority, in accordance with article 10(2) or 20A(3)(b), as the case may be, of the Regulations of 1997, of an acknowledgment in relation to that notice, or | ||
(ii) when completed, the relevant residential development on the land, being the land to which that relevant residential development relates, is not such that— | ||
(I) at least 75 per cent of the total surface area of that land is occupied by dwelling units, or | ||
(II) the gross floor space of dwelling units amounts to at least 75 per cent of the total surface area of that land, | ||
and subparagraphs (i) and (ii) are subsequently referred to in this section as the conditions for the avoidance of a clawback under this paragraph. | ||
(4) Where— | ||
(a) the land is acquired for the purpose of constructing a single dwelling unit, and | ||
(b) a declaration of intention to opt out of statutory certification submitted in accordance with article 9(5) of the Regulations of 1997 has been included on the public register in accordance with paragraph (10) of article 20F of those Regulations, | ||
then— | ||
(i) the dwelling unit specified in a commencement notice shall, for the purposes of this section, be treated as completed when a completion certificate is issued under subsection (13) or (14) of section 9D of the Electricity Regulation Act 1999 not later than 2 years after the date of sending by a building control authority, in accordance with article 10(2) or 20A(3)(b), as the case may be, of the Regulations of 1997, of an acknowledgment in relation to that commencement notice, and | ||
(ii) subsection (3)(c)(ii) shall not apply. | ||
(5) (a) Where the satisfaction of any of the following— | ||
(i) the condition specified in paragraph (a) of subsection (3), | ||
(ii) the conditions for the avoidance of a clawback under paragraph (c) of that subsection, or | ||
(iii) the condition specified in subsection (4)(i), | ||
is prevented by— | ||
(I) an appeal made under section 7 of the Building Control Act 1990 , or | ||
(II) an order made by a court requiring that construction operations cease to be carried out, | ||
the period commencing on the making of the appeal or the making of the order by the court and ending on the determination of the appeal or the discharge of the order shall not be reckoned for the purpose of computing the period of 30 months specified in subsection (3)(a) or the period of 2 years specified in subsection (3)(c)(i) or (4)(i). | ||
(b) Subsection (18) shall apply notwithstanding the effect provided for by paragraph (a) in relation to the periods referred to in that paragraph. | ||
(6) (a) The amount to be repaid in accordance with this section shall be determined by the formula— | ||
A x B x ⅔ | ||
where— | ||
A is the amount of stamp duty paid, at the rate of 6 per cent, on the instrument, and | ||
B is the proportion of the area of the land represented by the appropriate part, expressed as a fraction. | ||
(b) In relation to the construction of a single dwelling unit— | ||
(i) a claim for a repayment under this section shall not include any stamp duty attributable to any part of the land not occupied by the dwelling unit, and | ||
(ii) for the purposes of the formula in paragraph (a), B is the proportion of the land occupied by the dwelling unit. | ||
(7) (a) A claim for a repayment under this section shall be made in accordance with subsection (8). | ||
(b) If the residential development concerned is carried out in a phased manner such that there are 2 or more commencement notices in respect of the construction operations on the land, subsection (8) shall, without prejudice to the accountable person’s right to defer making a claim until completion of the residential development concerned, be construed as enabling a claim to be made in respect of such of the construction operations as for the time being are being carried out pursuant to a particular commencement notice. | ||
(8) A claim for a repayment under this section shall— | ||
(a) be made by an accountable person, | ||
(b) without prejudice to paragraph (d), be made in a form and manner specified by the Commissioners, | ||
(c) include a statutory declaration, in such form as the Commissioners specify, stating— | ||
(i) that the condition specified in subsection (3)(a) has been satisfied, and | ||
(ii) where a claim relates to a part of the stamp duty paid on the stamping of an instrument, the proportion of the area of the land represented by the appropriate part, or as the case may be, the proportion of the land occupied by the single dwelling unit, | ||
(d) be made by electronic means and through such electronic systems as the Commissioners may make available for the time being for any such purpose, and the relevant provisions of Chapter 6 of Part 38 of the Taxes Consolidation Act 1997 shall apply, | ||
(e) not be made until such time as construction operations have commenced pursuant to a commencement notice. | ||
(9) For the purposes of satisfying themselves that either the conditions for the making of a repayment under this section or the conditions for the avoidance of a clawback under paragraph (c) of subsection (3) are satisfied, the Commissioners may specify documents and particulars to be submitted by an accountable person, including the following: | ||
(a) a copy of any commencement notice; | ||
(b) a copy of any acknowledgement sent by a building control authority in accordance with article 10(2) or 20A(3)(b), as the case may be, of the Regulations of 1997; | ||
(c) a copy of any planning permission; | ||
(d) the number and gross floor space of dwelling units constructed; and | ||
(e) the area of the land expressed in hectares. | ||
(10) Subject to the requirements of this section, a repayment of stamp duty under this section shall— | ||
(a) be made by the Commissioners pursuant to a claim made in accordance with subsection (8), | ||
(b) not carry interest, and | ||
(c) not be made after the expiry of 4 years following, in relation to the relevant residential development, the date of acknowledgement by a building control authority in accordance with article 10(2) or 20A(3)(b), as the case may be, of the Regulations of 1997 and this paragraph applies notwithstanding anything in subsection (7)(b). | ||
(11) (a) Where the Commissioners are of the opinion that the requirements of this section have not been met in relation to a claim for repayment, they shall decide to refuse the claim and shall notify the claimant in writing of the decision and the reasons for it. | ||
(b) An accountable person aggrieved by a decision to refuse a claim for repayment, may appeal to the Appeal Commissioners against the decision in accordance with section 949I of the Taxes Consolidation Act 1997 , within the period of 30 days after the date of the notification of the decision. | ||
(12) (a) In either a case in which any of the requirements of this section in relation to an accountable person’s eligibility for a repayment of stamp duty are not met or the conditions specified in paragraph (c) of subsection (3) for the avoidance of a clawback under that paragraph are not satisfied, an accountable person shall be liable to pay to the Commissioners the stamp duty that had been repaid under subsection (10) to the accountable person (and that stamp duty to which the foregoing liability attaches is referred to in this section as a ‘clawback’). | ||
(b) Interest shall be payable on the clawback calculated in accordance with section 159D from the date on which the repayment was made to the date of payment of the clawback to the Commissioners. | ||
(13) (a) Where an accountable person fails to pay the clawback, the Commissioners may make an assessment of the amount of the stamp duty concerned as if the failure to pay were a failure to deliver a return under section 20(2). | ||
(b) Where there is more than one accountable person in relation to an instrument and a clawback, they shall be liable jointly and severally whether or not an assessment is made. | ||
(14) For the purposes of this section, section 128A shall apply as if the period of 6 years referred to in subsection (4) of that section commenced on the date of acknowledgement, in relation to the residential development concerned, by a building control authority in accordance with article 10(2) or 20A(3)(b), as the case may be, of the Regulations of 1997. | ||
(15) The submission to the Commissioners of an incorrect statement, document or particulars under this section shall be deemed to constitute the delivery of an incorrect statement for the purposes of section 1078 (2) of the Taxes Consolidation Act 1997 . | ||
(16) (a) Where a repayment has been made under this section and it is subsequently found that a declaration made in accordance with subsection (8)— | ||
(i) was untrue in any material particular that would have resulted in a repayment, or part of a repayment, allowed by this section not being made, and | ||
(ii) was made knowing same to be untrue or in reckless disregard as to whether or not it was true, | ||
then the person who made such a declaration shall be liable to pay to the Commissioners as a penalty an amount equal to 125 per cent of the stamp duty that would not have been repaid had all the facts been truthfully declared, together with interest charged on that amount as may so become payable, calculated in accordance with section 159D, from the date on which the repayment was made to the date the penalty is paid. | ||
(b) A person shall not be liable to a clawback under subsection (12), or a penalty under paragraph (a), as the case may be, if and to the extent that such person has paid— | ||
(i) a penalty under paragraph (a), or | ||
(ii) a clawback under subsection (12). | ||
(17) (a) Notwithstanding any enactment or rule of law, the Commissioners may, by notice in writing, request a building control authority to provide them with such information as is in the possession or control of the building control authority as the Commissioners may reasonably require for the purposes of verifying— | ||
(i) that a thing referred to in the definition of ‘commencement notice’ in subsection (1)(a) exists or has been done, | ||
(ii) the commencement of construction operations, | ||
(iii) the completion of residential development, or | ||
(iv) the proportion of the land occupied by dwelling units. | ||
(b) Where the Commissioners make a request under paragraph (a), the building control authority concerned shall provide such information as may be specified in the notice within the period specified in the notice which period, in any case, shall not be less than 30 days. | ||
(c) Taxpayer information within the meaning of section 851A(1) of the Taxes Consolidation Act 1997 may be disclosed by an officer of the Revenue Commissioners to a building control authority for the purposes of enabling the building control authority to comply with a request made under paragraph (a). | ||
(18) This section shall not apply to construction operations comprising relevant residential development commenced, pursuant to a commencement notice, after 31 December 2021.”. |