Finance Act, 1989
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Taxation of collective investment undertakings. |
18.—(1) In this section and the First Schedule — | |
“accounting period” means, in relation to a collective investment undertaking, the chargeable period or its basis period (within the meaning of paragraph 1 (2) of the First Schedule to the Corporation Tax Act, 1976 ) on the income or profits of which the undertaking is chargeable to income tax or corporation tax, as the case may be, for any chargeable period (within the same meaning), or would be so chargeable but for an insufficiency of income or profits: | ||
Provided that— | ||
(a) where two basis periods overlap, the period common to both shall be deemed to fall into the first basis period only, | ||
(b) where there is an interval between the end of the basis period for one chargeable period and the basis period for the next chargeable period, then, the interval shall be deemed to be part of the second basis period, and | ||
(c) the reference in paragraph (a) to the overlapping of two periods shall be construed as including a reference to the coincidence of two periods or to the inclusion of one period in another, and the reference to the period common to both shall be construed accordingly; | ||
“the Acts” means the Tax Acts and the Capital Gains Tax Acts; | ||
“the airport” has the same meaning as it has in the Customs-free Airport Act, 1947 ; | ||
“appropriate tax” means, in relation to the amount of any relevant payment made by a collective investment undertaking or in relation to any amount of undistributed relevant income of such an undertaking, as the case may be, a sum representing tax on the amount of the payment or the amount of the undistributed relevant income, as appropriate, at a rate equal to the standard rate of income tax in force at the time of the payment or at the end of the accounting period to which the undistributed relevant income relates, as the case may be, after making a deduction from that sum of an amount equal to, or to the aggregate of— | ||
(a) in the case of a relevant payment— | ||
(i) in so far as it is made, wholly or partly, out of relevant income which at a previous date had been or formed part of the undistributed relevant income of the undertaking, the amount of any appropriate tax deducted from the relevant income, or, where the payment, or that part of it which is made out of relevant income, is less than the relevant income, from such part of the relevant income as is represented by the payment, or that part of the payment, as the case may be, and | ||
(ii) any other amount or amounts of tax deducted from the relevant profits out of which the relevant payment is made, or, where the payment is less than the profits, from such part of the profits as is represented by the payment, under any of the provisions of the Acts apart from this section and which is or are not repayable to the collective investment undertaking, | ||
or | ||
(b) in the case of an amount of undistributed relevant income, any amount or amounts of tax deducted from the income under any of the provisions of the Acts apart from this section and which is or are not repayable to the collective investment undertaking: | ||
Provided that the amount of the deduction shall not exceed the amount of the sum; | ||
“the Area” has the same meaning as it has for the purposes of section 39B (inserted by the Finance Act, 1987 ) of the Finance Act, 1980 ; | ||
“chargeable gains” has the same meaning as in the Capital Gains Tax Act, 1975 ; | ||
“collective investment undertaking” means— | ||
(a) a registered unit trust scheme within the meaning of the Unit Trusts Act, 1972 , and | ||
(b) any other undertaking which is an undertaking for collective investment in transferable securities within the meaning of the relevant Regulations, being an undertaking which holds an authorisation issued pursuant to the relevant Regulations and that authorisation has not been revoked; | ||
“distribution” has the same meaning as it has for the purposes of the Corporation Tax Acts; | ||
“qualified company” has, in relation to any business of a collective investment undertaking carried on in— | ||
(a) the airport, the same meaning as it has for the purposes of section 39A (inserted by the Finance Act, 1981 ) of the Finance Act, 1980 , or | ||
(b) the Area, the same meaning as it has for the purposes of section 39B (inserted by the Finance Act, 1987 ) of the said Finance Act, 1980 ; | ||
“qualifying management company” means, in relation to a collective investment undertaking, a qualified company which, in the course of relevant trading operations carried on by the qualified company, manages the whole or any part of the investments and other activities of the business of the undertaking; | ||
“relevant gains” means, in relation to a collective investment undertaking, gains accruing to the undertaking being gains which would constitute chargeable gains in the hands of a person resident in the State; | ||
“relevant income” means, in relation to a collective investment undertaking, any amounts of income, profits or gains which arise to or are receivable by the collective investment undertaking being amounts of income, profits or gains— | ||
(a) which are, or are to be, paid to unit holders as relevant payments, or | ||
(b) out of which relevant payments are, or are to be, made to unit holders, or | ||
(c) which are, or are to be, accumulated for the benefit of, or invested in transferable securities for the benefit of, unit holders, | ||
and which if they arose to an individual resident in the State would, in the hands of the individual, constitute income for the purposes of income tax; | ||
“relevant payment” means a payment made to a unit holder by a collective investment undertaking by reason of rights conferred on the unit holder as a result of holding a unit or units in the collective investment undertaking, other than a payment made in respect of the cancellation, redemption or repurchase of a unit; | ||
“relevant profits” means, in relation to a collective investment undertaking, the relevant income and relevant gains of the undertaking; | ||
“relevant Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989); | ||
“relevant trading operations” has, in relation to any business of a collective investment undertaking carried on by a qualified company in— | ||
(a) the airport, the same meaning as it has for the purposes of section 39A (inserted by the Finance Act, 1981 ) of the Finance Act, 1980 , or | ||
(b) the Area, the same meaning as it has for the purposes of section 39B (inserted by the Finance Act, 1987 ) of the said Finance Act, 1980 ; | ||
“return” means a return under paragraph 1 (2) of the First Schedule ; | ||
“specified collective investment undertaking” means a collective investment undertaking— | ||
(a) most of the business of which, to the extent that it is carried on in the State— | ||
(i) (I) is carried on in the Area by the undertaking or by a qualifying management company of the undertaking or by the undertaking and the qualifying management company of the undertaking, or | ||
(II) is not so carried on in the Area but— | ||
(A) is so carried on in the State, | ||
(B) would be so carried on in the Area but for circumstances outside the control of the person or persons carrying on the business, and | ||
(C) is so carried on in the Area when the aforementioned circumstances cease to exist, | ||
or | ||
(ii) is carried on in the airport by the undertaking or by a qualifying management company of the undertaking or by the undertaking and the qualifying management company of the undertaking, | ||
and | ||
(b) save to the extent that such units are held by the undertaking itself or by the qualifying management company of the undertaking, all the holders of units in the undertaking are persons resident outside the State; | ||
“tax” means income tax, corporation tax or capital gains tax, as may be appropriate; | ||
“transferable securities” has the same meaning as in the relevant Regulations; | ||
“undistributed relevant income” means, in relation to a collective investment undertaking, any relevant income arising to or receivable by the undertaking in an accounting period of the undertaking and which at the end of the accounting period has not been paid to the unit holders and from which appropriate tax has not previously been deducted; | ||
“unit” includes a share and any other instrument granting an entitlement— | ||
(a) to a share of the investments or relevant profits of, or | ||
(b) to receive a distribution from, | ||
a collective investment undertaking; | ||
“unit holder” means, in relation to a collective investment undertaking, any person who by reason of the holding of a unit, or under the terms of a unit, in the undertaking is entitled to a share of any of the investments or relevant profits of, or to receive a distribution from, the undertaking. | ||
(2) For the purposes of this section— | ||
(a) where any payment is made out of relevant profits, or out of any part thereof, from which any tax, including appropriate tax, has been deducted and the payment is less than the relevant profits, or that part thereof, the amount of the tax so deducted which is referable to the part of the profits represented by the payment shall be the amount which bears to the total amount of the tax deducted from the relevant profits, or the part thereof, the same proportion as the amount of the payment bears to the amount of the relevant profits, or the part thereof, as the case may be, and | ||
(b) any reference in this section to the amount of a relevant payment shall be construed as a reference to the amount which would be the amount of the relevant payment if the appropriate tax were not to be deducted from the relevant payment or from any undistributed relevant income out of which the relevant payment, or any part thereof, is made | ||
(3) Notwithstanding anything in the Acts, but subject to subsection (5), a collective investment undertaking shall not be chargeable to tax in respect of relevant profits but the said relevant profits shall be chargeable to tax in the hands of any unit holder, including the undertaking, to whom a relevant payment of or out of the relevant profits is made if, and to the extent that, the unit holder would be chargeable to tax in the State on such relevant profits, or on such part of the relevant profits as is represented by the payment, on the basis that and in all respects as if, subject to subsections (4) and (6), the relevant profits, or that part of the relevant profits, had arisen or accrued to the unit holder without passing through the hands of the undertaking. | ||
(4) Where, pursuant to subsection (3), a unit holder is to be charged to tax on a relevant payment— | ||
(a) in so far as any amount of the relevant payment on which he is to be so charged is, or is made out of, relevant income, he shall be charged to tax on that amount under Case IV of Schedule D as if it were an amount of income arising to him at the time the payment is made, and | ||
(b) in so far as any amount of the relevant payment on which he is to be so charged is, or is made out of, relevant gains, it shall be treated as a capital distribution within the meaning of section 31 of the Capital Gains Tax Act, 1975 , and, if it is not already the case, that Act shall apply in all respects as if the said amount of the relevant payment were a capital distribution made by a unit trust and the unit or units in respect of which it is paid were a unit or units in a unit trust. | ||
(5) (a) Where a collective investment undertaking, which is not a specified collective investment undertaking— | ||
(i) makes a relevant payment of, or out of, relevant profits to a unit holder who is resident in the State, or | ||
(ii) has at the end of an accounting period of the undertaking any undistributed relevant income, | ||
it shall deduct out of the amount of the relevant payment or the amount of the undistributed relevant income, as the case may be, the appropriate tax; and the unit holder to whom the relevant payment is made or the unit holder or unit holders entitled to the relevant income, as the case may be, shall allow the deduction and the collective investment undertaking shall, on the making of the said relevant payment to the unit holder or on the making of any relevant payment out of the undistributed relevant income to any unit holder, as the case may be, be acquitted and discharged of so much money as is represented by the deduction, or, where the relevant payment is less than the amount of the undistributed relevant income, by so much of the deduction as is referable to the relevant payment, as if the amount of money had actually been paid to the unit holder. | ||
(b) The First Schedule shall have effect for the purposes of supplementing this subsection. | ||
(6) (a) Where a unit holder receives a relevant payment from a collective investment undertaking, which is not a specified collective investment undertaking, and appropriate tax has been deducted from the payment, or from the relevant profits, or part thereof, out of which the payment is made, then the unit holder shall— | ||
(i) if he is not resident in the State for tax purposes at the time the payment is made, be entitled, on due claim and on proof of the facts, to repayment of the appropriate tax, or so much of it as is referable to the relevant payment, as the case may be, or | ||
(ii) in any other case, to have his liability to tax under any assessment made in respect of the relevant payment, or any part thereof, reduced by a sum equal to so much, if any, of the appropriate tax as is referable to the amount of the relevant payment contained in the assessment and, where the appropriate tax so referable exceeds his liability to tax in respect of the relevant payment, or in respect of that part of the relevant payment contained in the assessment, to repayment of the excess. | ||
(b) For the purposes of paragraph (a) (ii), the inspector, or on appeal, the Appeal Commissioners, shall make such apportionment of the appropriate tax deducted from a relevant payment, or from the relevant profits out of which it, or any part of it, is made as is just and reasonable to determine the amount of the appropriate tax, if any, referable to any part of the relevant payment contained in an assessment. | ||
(7) Section 32 of the Capital Gains Tax Act, 1975 , shall not apply as on and from— | ||
(a) the passing of this Act, to— | ||
(i) a qualifying unit trust (within the meaning of the said section 32), and | ||
(ii) the disposal of qualifying units (within the same meaning) in the said qualifying unit trust, | ||
where the qualifying unit trust is also a specified collective investment undertaking, and | ||
(b) (i) the 6th day of April, 1990, | ||
or | ||
(ii) where this section applies by virtue of subsection (12) (b) on an earlier day to a qualifying unit trust which is a collective investment undertaking, such earlier day in respect of the qualifying unit trust, | ||
to such a qualifying unit trust or to the disposal of such qualifying units in the qualifying unit trust, where the qualifying unit trust is a collective investment undertaking without also being a specified collective investment undertaking. | ||
(8) Section 13 of the Finance Act, 1976 , shall not apply to a collective investment undertaking if, but for this subsection, it would otherwise apply. | ||
(9) As respects any collective investment undertaking which is a company (within the meaning of the Corporation Tax Acts)— | ||
(a) a relevant payment made out of the relevant profits of the undertaking, or a payment made in respect of the cancellation, redemption or repurchase of a unit in the undertaking, shall not be treated as a distribution for any of the purposes of the Tax Acts, and | ||
(b) if, but for this subsection, it would otherwise apply, section 101 of the Corporation Tax Act, 1976 , shall not apply to the collective investment undertaking. | ||
(10) For the purpose of any arrangement having the force of law by reason of section 361 of the Income Tax Act, 1967 , a collective investment undertaking shall be deemed not to be liable to tax in the State or to be resident therein. | ||
(11) Notwithstanding the provisions of section 200 of the Income Tax Act, 1967, a person not resident in the State shall not, by virtue of those provisions, be assessable and chargeable in the name of an agent in respect of a relevant payment made out of the relevant profits of a collective investment undertaking. | ||
(12) This section shall have effect as on and from— | ||
(a) in the case of a specified collective investment undertaking, the passing of this Act, and | ||
(b) in the case of any other collective investment undertaking, the 6th day of April, 1990, or such earlier day, not being earlier than the 6th day of April, 1989, as the Revenue Commissioners may agree to in writing with any such other collective investment undertaking in respect of that undertaking. |