Home Building Finance Ireland Act 2018
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Number 28 of 2018 | ||
HOME BUILDING FINANCE IRELAND ACT 2018 | ||
CONTENTS | ||
Preliminary and General | ||
HBFI | ||
Funding of HBFI | ||
Financial Statements and Public Accountability | ||
Financial statements of HBFI and HBFI group entities | ||
15. Preparation and audit of statutory financial statements of HBFI and HBFI group entities | ||
Public accountability | ||
Consequential Amendments | ||
18. Amendment of section 246 of Taxes Consolidation Act 1997 | ||
19. Amendment of National Treasury Management Agency (Amendment) Act 2014 | ||
Miscellaneous Provisions | ||
26. Disapplication of certain provisions of Companies Act to HBFI | ||
Local Property Tax | ||
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Acts Referred to | ||
Companies Act 2014 (No. 38) | ||
Comptroller and Auditor General (Amendment) Act 1993 (No. 8) | ||
Ethics in Public Office Act 1995 (No. 22) | ||
Freedom of Information Act 2014 (No. 30) | ||
National Treasury Management Agency (Amendment) Act 2014 (No. 23) | ||
Planning and Development Act 2000 (No. 30) | ||
Protected Disclosures Act 2014 (No. 14) | ||
Taxes Consolidation Act 1997 (No. 39) | ||
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Number 28 of 2018 | ||
HOME BUILDING FINANCE IRELAND ACT 2018 | ||
An Act to provide for the formation of a company to be known as Home Building Finance Ireland; to provide for the making available of financing by the company for residential development in the State; to amend the Finance (Local Property Tax) Act 2012 and the Freedom of Information Act 2014 ; and to provide for related matters. | ||
[3rd December, 2018] | ||
Be it enacted by the Oireachtas as follows: | ||
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PART 1 Preliminary and General | ||
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Short title and commencement | ||
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1. (1) This Act may be cited as the Home Building Finance Ireland Act 2018. | ||
(2) This Act, other than Part 7, shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions. | ||
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Definitions | ||
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2. In this Act— | ||
“Act of 2009” means the National Asset Management Agency Act 2009 ; | ||
“Companies Act” means the Companies Act 2014 ; | ||
“development” has the same meaning as it has in the Planning and Development Act 2000 ; | ||
“Home Building Finance Ireland” or “HBFI” means the company formed and registered by the Minister under section 4 (1); | ||
“HBFI group entity” means— | ||
(a) a subsidiary of HBFI, or | ||
(b) any other body corporate and any trust, partnership, arrangement for the sharing of profits and losses, joint venture, association, syndicate or other arrangement, | ||
formed, registered, incorporated or established by HBFI for the purpose of performing any of its functions under this Act; | ||
“Minister” means the Minister for Finance; | ||
“NAMA” means the National Asset Management Agency; | ||
“NTMA” means the National Treasury Management Agency; | ||
“officer of HBFI” means a person assigned to HBFI in accordance with section 9 (4); | ||
“officer of a HBFI group entity” means a person assigned to a HBFI group entity in accordance with section 9 (4); | ||
“residential development” means a development solely or primarily for residential purposes; | ||
“subsidiary” means a subsidiary undertaking, within the meaning of section 275 of the Companies Act. | ||
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Expenses | ||
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3. (1) The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas. | ||
(2) The expenses incurred by the NTMA in the performance of its functions under this Act shall be charged on and paid out of the Central Fund or the growing produce thereof. | ||
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PART 2 HBFI | ||
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Formation of Home Building Finance Ireland | ||
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4. (1) The Minister shall, as soon as practicable after the commencement of this section, cause a DAC limited by shares, conforming to the conditions laid down in this Act, to be formed and registered under Part 16 of the Companies Act. | ||
(2) The name of the company referred to in subsection (1) shall be Home Building Finance Ireland. | ||
(3) Subject to this Act, HBFI shall be independent in the performance of its functions. | ||
(4) In this section, “DAC limited by shares” has the same meaning as it has in Part 16 of the Companies Act. | ||
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Constitution of HBFI | ||
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5. (1) The constitution of HBFI shall be in such form, consistent with this Act, as may be approved by the Minister. | ||
(2) Notwithstanding anything contained in the Companies Act, an alteration of the constitution of HBFI shall not be valid or effectual unless made with the prior approval of the Minister. | ||
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Group entities of HBFI | ||
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6. (1) HBFI may, with the consent of the Minister, either by itself or with other persons, promote, take part in the formation of, or acquire a shareholding in, a HBFI group entity. | ||
(2) A HBFI group entity constitutional document shall be in such form, consistent with this Act, as may be approved of by HBFI. | ||
(3) A HBFI group entity shall make such reports to HBFI as HBFI may require. | ||
(4) Neither HBFI nor any HBFI group entity shall guarantee the borrowings or liabilities of any of their subsidiaries without the prior consent of the Minister. | ||
(5) HBFI may, with the prior consent of the Minister, and subject to any conditions as the Minister may determine, wind up any HBFI group entity. | ||
(6) In this section, “HBFI group entity constitutional document” means the constitution, memorandum of association, articles of association, trust deed, partnership agreement or other document providing for the establishment and governance of a HBFI group entity. | ||
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Functions of HBFI | ||
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7. (1) HBFI may lend money for the purpose of funding residential development in the State, provided that such lending shall be on commercial terms. | ||
(2) In lending money under subsection (1), HBFI shall— | ||
(a) take into account all of the risk factors relevant to such lending, both in respect of the residential development concerned and the business of HBFI, and | ||
(b) aim to— | ||
(i) contribute to the economic and social development of the State, and | ||
(ii) enhance the competitiveness of the economy of the State. | ||
(3) In complying with its obligation under subsection (2) (b) (i), HBFI shall have regard to the policy of the Government relating to housing. | ||
(4) HBFI shall have all such powers as are necessary or expedient for, or incidental to, the performance of its functions. | ||
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Board of HBFI | ||
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8. (1) The board of HBFI shall consist of at least 3 and not more than 7 directors (including its chairperson), each of whom shall be appointed by the Minister. | ||
(2) The Minister shall appoint one of the directors of HBFI to be its chairperson. | ||
(3) An appointment to the board and the appointment of a company secretary of HBFI shall each be subject to such terms and conditions as are set out in the constitution of HBFI. | ||
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Services, systems and staff of HBFI | ||
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9. (1) HBFI shall from time to time, following consultation with the Chief Executive of the NTMA, determine the services, systems and staff required by HBFI, or any HBFI group entity, to enable the performance by HBFI of its functions, including the obligations imposed on HBFI under section 7 (2). | ||
(2) The NTMA shall, where practicable, provide such services and systems from the services and systems of the NTMA to HBFI, or any HBFI group entity, as may be necessary to meet the requirements determined by HBFI under subsection (1). | ||
(3) Where services or systems, meeting the requirements determined by HBFI under subsection (1), have been provided by the NTMA to NAMA under section 41 of the Act of 2009, the NTMA shall, subject to the approval of the Chief Executive Officer and Board of NAMA, comply with subsection (2) by providing such services or systems to HBFI or a HBFI group entity, as the case may be. | ||
(4) The NTMA shall assign such staff from the staff of the NTMA to HBFI, or any HBFI group entity, as may be necessary to meet the requirements determined by HBFI under subsection (1). | ||
(5) Where staff, meeting the requirements determined by HBFI under subsection (1), have been assigned by the NTMA to NAMA under section 42 of the Act of 2009, the NTMA shall, subject to the approval of the Chief Executive Officer and Board of NAMA, comply with subsection (4) by assigning such staff to HBFI or a HBFI group entity, as the case may be. | ||
(6) The Chief Executive Officer and Board of NAMA may each withhold approval under subsection (3) or (5) where, in the opinion of the Chief Executive Officer or the Board, the granting of approval is likely to materially affect NAMA’s ability to achieve the purpose specified in section 10 of the Act of 2009. | ||
(7) Where the NTMA is unable for any reason to provide services or systems to HBFI or any HBFI group entity— | ||
(a) HBFI, | ||
(b) the HBFI group entity concerned, or | ||
(c) the NTMA acting on behalf of HBFI or the HBFI group entity concerned, | ||
may procure such services or systems as are necessary to meet the requirements determined by HBFI under subsection (1). | ||
(8) Where a service or system is procured under subsection (7), HBFI shall enter into an agreement with the provider or supplier of that service or system, as the case may be. | ||
(9) A member of staff of the NTMA being assigned to HBFI or a HBFI group entity shall, before such assignment, provide a statement of his or her interests, assets and liabilities to the Chief Executive of the NTMA in a form that the NTMA specifies. | ||
(10) HBFI or a HBFI group entity, as the case may be, shall pay the NTMA for costs incurred by the NTMA, in respect of the provision of services, systems and staff to HBFI or the HBFI group entity concerned. | ||
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PART 3 Funding of HBFI | ||
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Share capital of HBFI | ||
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10. (1) The Minister shall subscribe to the constitution of HBFI. | ||
(2) HBFI shall on incorporation allot and issue to the Minister shares with a total nominal value of €20,000,000. | ||
(3) Subject to subsection (4), the allotment and issue of shares by HBFI shall be subject to the prior consent of the Minister. | ||
(4) HBFI may, from time to time, allot and issue to the Minister such number of shares as may be agreed upon and are subscribed for by the Minister. | ||
(5) HBFI may, with the consent of the Minister, divide shares into different classes and attach to those classes any rights, privileges or conditions. | ||
(6) In this section, “issue”, in relation to a share in HBFI, means the entry of the name of the person to whom the share is allotted in the register of members of HBFI. | ||
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Alienation of shares by Minister | ||
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11. (1) The Minister may hold, for so long as he or she thinks fit, any shares in HBFI issued to the Minister. | ||
(2) Subject to subsection (3), the Minister may, at such time or times as appear to him or her appropriate, sell, transfer, exchange, surrender or dispose of all or any of the shares in HBFI on such terms and conditions as appear to the Minister to be appropriate. | ||
(3) The Minister may only sell, transfer, exchange or dispose of his or her shares in HBFI under subsection (2) to or with, as the case may be— | ||
(a) the NTMA, | ||
(b) the Minister for Housing, Planning and Local Government, or | ||
(c) a body under the aegis of the Minister for Housing, Planning and Local Government. | ||
(4) HBFI may, subject to the prior consent of the Minister, redeem all or any of the shares in HBFI on such terms and conditions as appear to the board of HBFI to be appropriate. | ||
(5) Any funds received in respect of— | ||
(a) the sale, transfer, exchange, surrender or disposal of any share under subsection (2), or | ||
(b) the redemption of any share under subsection (4), | ||
shall be paid into, or disposed of for the benefit of, the Exchequer. | ||
(6) Subject to this section, the Minister may, in respect of the shares in HBFI for the time being held by him or her, exercise all or any of the rights and powers from time to time exercisable by the holder of such shares. | ||
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Payment of dividends | ||
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12. (1) HBFI may pay such dividends to the Minister as may be decided by the board of HBFI following consultation with the Minister. | ||
(2) All amounts representing dividends or other moneys received by the Minister in respect of shares held by him or her in the share capital of HBFI shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister may direct. | ||
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Borrowing by HBFI | ||
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13. (1) Subject to subsection (3), HBFI or any HBFI group entity may from time to time borrow money in any currency. | ||
(2) For the purpose of borrowing, HBFI or any HBFI group entity may create and issue bonds, debentures and other securities, bearing such rate of interest and subject to such conditions as to repayment, redemption or otherwise as HBFI or the HBFI group entity, as the case may be, thinks fit. | ||
(3) The total aggregate amount of principal which HBFI and any HBFI group entities are at any time liable to repay on foot of any liability incurred as a result of the exercise of a power under this section shall not exceed €750,000,000. | ||
(4) HBFI shall be responsible for the satisfaction of all liabilities it may incur as a result of borrowing under subsection (1). | ||
(5) For the purpose of calculating the total aggregate amount of principal referred to in subsection (3), the equivalent in the currency of the State of borrowings in a currency other than the currency of the State shall be calculated at the rate of exchange prevailing at the time the calculation is made. | ||
(6) For the purposes of subsection (5), where the European Central Bank has published— | ||
(a) a Euro Foreign Exchange Reference Rate, or | ||
(b) a rate expressed by the European Central Bank to replace that rate, | ||
which is applicable to the currency concerned and the time the calculation concerned is made, that rate shall be taken to be the rate of exchange prevailing at that time for that currency. | ||
(7) For the purpose of calculating the total amount of principal referred to in subsection (3), no account shall be taken of money loaned to HBFI or a HBFI group entity in accordance with a direction of the Minister under section 42A (inserted by section 19 ) of the National Treasury Management Agency (Amendment) Act 2014 . | ||
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PART 4 Financial Statements and Public Accountability | ||
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Chapter 1 Financial statements of HBFI and HBFI group entities | ||
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Interpretation (Chapter 1) | ||
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14. In this Chapter, a reference to a HBFI group entity is a reference to a HBFI group entity which is— | ||
(a) a company formed and registered under the Companies Act, or | ||
(b) an existing company within the meaning of that Act. | ||
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Preparation and audit of statutory financial statements of HBFI and HBFI group entities | ||
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15. (1) Part 6 of the Companies Act shall apply to HBFI and any HBFI group entity subject to the modifications specified in subsections (2) to (7). | ||
(2) HBFI and any HBFI group entity shall, not later than 2 months after the end of the financial year to which they relate, submit the statutory financial statements, prepared in accordance with Part 6 of the Companies Act, to the Comptroller and Auditor General for audit. | ||
(3) The Comptroller and Auditor General shall— | ||
(a) audit, and | ||
(b) prepare a report in the form set out in section 336 of the Companies Act on, | ||
the statutory financial statements submitted to him or her under subsection (2). | ||
(4) HBFI shall, as soon as practicable after receipt of the report of the Comptroller and Auditor General prepared under subsection (3), present to the Minister a copy of— | ||
(a) the statutory financial statements submitted to the Comptroller and Auditor General under subsection (2), and | ||
(b) the report prepared under subsection (3). | ||
(5) The Minister shall cause a copy of the statutory financial statements and report presented to him or her under subsection (4) to be laid before each House of the Oireachtas as soon as practicable following their presentation. | ||
(6) In relation to HBFI and any HBFI group entity— | ||
(a) a reference to “statutory auditor” in the Companies Act shall include a reference to the Comptroller and Auditor General, and | ||
(b) a reference to “audit of the statutory financial statements” in the Companies Act shall include a reference to the audit of the statutory financial statements by the Comptroller and Auditor General under subsection (3). | ||
(7) Chapters 18, 20 and 21 of Part 6 of the Companies Act shall not apply to the Comptroller and Auditor General in the performance of his or her functions in relation to HBFI, or any HBFI group entity, nor to the audit of the statutory financial statements of HBFI, or any HBFI group entity, by him or her. | ||
(8) In this section, “statutory financial statements” has the same meaning as it has in Part 6 of the Companies Act. | ||
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Appointment of statutory auditor or firm | ||
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16. (1) Where, following prior consultation with the Minister, the board of HBFI considers it appropriate to do so having regard to its functions (including the obligations imposed on HBFI under section 7 (2)), HBFI or any HBFI group entity may appoint a statutory auditor or statutory audit firm to be a statutory auditor of HBFI or the HBFI group entity, as the case may be, for the purposes of, and in accordance with, the Companies Act. | ||
(2) The appointment of a statutory auditor or statutory audit firm under subsection (1) shall not affect the operation of section 15 . | ||
(3) In this section— | ||
“2016 Audit Regulations” means the European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 ( S.I. No. 312 of 2016 ); | ||
“statutory auditor” has the same meaning as it has in the 2016 Audit Regulations; | ||
“statutory audit firm” has the same meaning as it has in the 2016 Audit Regulations. | ||
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Chapter 2 Public accountability | ||
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Accountability to Committee of Public Accounts | ||
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17. (1) The chairperson of the board of HBFI shall nominate a member of that board or a senior officer of HBFI (referred to in this section as the “nominated person”) for the purposes of this section. | ||
(2) The nominated person shall, whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on— | ||
(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record or account subject to audit by the Comptroller and Auditor General that HBFI is required by or under an enactment to prepare, | ||
(b) the economy and efficiency of HBFI in its use of the resources made available to it under this Act, | ||
(c) the systems, procedures and practices employed by HBFI for the purposes of evaluating the effectiveness of its operations, and | ||
(d) any matter affecting HBFI referred to in— | ||
(i) any special report of the Comptroller and Auditor General under section 11 (2) of the Comptroller and Auditor General (Amendment) Act 1993 , or | ||
(ii) any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in any of paragraphs (a) to (c)) that is laid before Dáil Éireann. | ||
(3) In appearing before a Committee referred to in subsection (2), the nominated person appears as a person accountable to the Committee and not as an accounting officer. | ||
(4) The nominated person, in giving evidence under subsection (2), shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy. | ||
(5) Any evidence given under subsection (2) shall, subject to preserving confidentiality in relation to such commercially sensitive information as determined by HBFI, relate to the policies of HBFI. | ||
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PART 5 Consequential Amendments | ||
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Amendment of section 246 of Taxes Consolidation Act 1997 | ||
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18. Section 246 (3) of the Taxes Consolidation Act 1997 is amended— | ||
(a) in paragraph (g), by the deletion of “or”, | ||
(b) in paragraph (h), by the substitution of “agency,” for “agency.”, and | ||
(c) by the insertion of the following paragraphs after paragraph (h): | ||
“(i) interest paid to Home Building Finance Ireland or a subsidiary wholly owned by it or a subsidiary wholly owned by any such subsidiary, or | ||
(j) interest paid by Home Building Finance Ireland or a subsidiary wholly owned by it or a subsidiary wholly owned by any such subsidiary.”. | ||
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Amendment of National Treasury Management Agency (Amendment) Act 2014 | ||
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19. The National Treasury Management Agency (Amendment) Act 2014 is amended— | ||
(a) in section 37, in the definition of “directed investment”, by the substitution of the following paragraph for paragraph (a): | ||
“(a) an investment made by the Agency pursuant to a direction under section 42, 42A or 47(4)(b) or the proceeds held by the Agency pursuant to a direction under section 47(4)(c),”, | ||
and | ||
(b) by the insertion of the following section after section 42: | ||
“Funding of HBFI | ||
42A. (1) Notwithstanding any other provision of this Act, the Minister may direct the Agency to— | ||
(a) lend money to HBFI or any HBFI group entity out of the assets of the Fund on the commercial terms and conditions specified in the direction, | ||
(b) exercise, on the terms and conditions specified in the direction, any rights attaching to a loan made under paragraph (a), | ||
(c) terminate or dispose of, on the terms and conditions specified in the direction, a loan made under paragraph (a), or | ||
(d) pay money to HBFI out of the assets of the Fund for the purposes of discharging the liability of the Minister in respect of the shares allotted and issued to the Minister under section 10 (2) of the Home Building Finance Ireland Act 2018. | ||
(2) The total amount— | ||
(a) loaned under subsection (1)(a), and | ||
(b) paid under subsection (1)(d), | ||
shall not at any time exceed €750,000,000. | ||
(3) For the purpose of calculating the amount referred to in subsection (2), the equivalent in the currency of the State of amounts loaned or paid in a currency other than the currency of the State shall be calculated at the rate of exchange prevailing at the time the calculation is made. | ||
(4) For the purposes of subsection (3), where the European Central Bank has published— | ||
(a) a Euro Foreign Exchange Reference Rate, or | ||
(b) a rate expressed by the European Central Bank to replace that rate, | ||
which is applicable to the currency concerned and the time the calculation concerned is made, that rate shall be taken to be the rate of exchange prevailing at that time for that currency. | ||
(5) Interest on any borrowings, liabilities and obligations of HBFI or any HBFI group entity shall not be taken into account in calculating the value of the amount referred to in subsection (2). | ||
(6) The Agency shall comply with a direction given under subsection (1). | ||
(7) In this section ‘HBFI’ and ‘HBFI group entity’ have the same meanings as they have in the Home Building Finance Ireland Act 2018.”. | ||
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Amendment of Freedom of Information Act 2014 | ||
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20. The Freedom of Information Act 2014 is amended— | ||
(a) in section 2(1), by the insertion of the following definition: | ||
“ ‘HBFI group entity’ has the same meaning as it has in the Home Building Finance Ireland Act 2018;”, | ||
and | ||
(b) in Part 1 of Schedule 1— | ||
(i) in paragraph (ai), by the substitution of “functions;” for “functions,”, and | ||
(ii) by the insertion of the following paragraphs after paragraph (aj): | ||
“(ak) the National Treasury Management Agency in the performance of the functions conferred on it under the Home Building Finance Ireland Act 2018 insofar as it relates to records concerning the following: | ||
(i) providers or potential providers of finance (including loans) to Home Building Finance Ireland or any HBFI group entity; | ||
(ii) companies, firms, funds or any other entities to which Home Building Finance Ireland or any HBFI group entity has provided finance (including loans) or could potentially provide finance (including loans); | ||
(iii) market counterparties or potential market counterparties of Home Building Finance Ireland or any HBFI group entity; | ||
(iv) purchasers or potential purchasers of— | ||
(I) a loan, | ||
(II) an asset, or | ||
(III) an asset securing a loan, | ||
held or managed by Home Building Finance Ireland or any HBFI group entity; | ||
(al) Home Building Finance Ireland in the performance of the functions conferred on it under the Home Building Finance Ireland Act 2018 insofar as it relates to records concerning the following: | ||
(i) providers or potential providers of finance (including loans) to Home Building Finance Ireland or any HBFI group entity; | ||
(ii) companies, firms, funds or any other entities to which Home Building Finance Ireland or any HBFI group entity has provided finance (including loans) or could potentially provide finance (including loans); | ||
(iii) market counterparties or potential market counterparties of Home Building Finance Ireland or any HBFI group entity; | ||
(iv) purchasers or potential purchasers of— | ||
(I) a loan, | ||
(II) an asset, or | ||
(III) an asset securing a loan, | ||
held or managed by Home Building Finance Ireland or any HBFI group entity; | ||
(am) a HBFI group entity in the performance of the functions conferred on it under the Home Building Finance Ireland Act 2018 insofar as it relates to records concerning the following: | ||
(i) providers or potential providers of finance (including loans) to Home Building Finance Ireland or any HBFI group entity; | ||
(ii) companies, firms, funds or any other entities to which Home Building Finance Ireland or any HBFI group entity has provided finance (including loans) or could potentially provide finance (including loans); | ||
(iii) market counterparties or potential market counterparties of Home Building Finance Ireland or any HBFI group entity; | ||
(iv) purchasers or potential purchasers of— | ||
(I) a loan, | ||
(II) an asset, or | ||
(III) an asset securing a loan, | ||
held or managed by Home Building Finance Ireland or any HBFI group entity.”. | ||
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PART 6 Miscellaneous Provisions | ||
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Shadow directors | ||
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21. (1) A person specified in subsection (2) shall not be taken to be— | ||
(a) a shadow director (within the meaning of the Companies Act), or | ||
(b) a de facto director (within the meaning of the Companies Act), | ||
of HBFI or any HBFI group entity, unless that person is appointed as a director of HBFI or a HBFI group entity, as the case may be. | ||
(2) The persons referred to in subsection (1) are the following: | ||
(a) the Minister; | ||
(b) the NTMA; | ||
(c) an employee or a member of the staff of the NTMA; | ||
(d) NAMA; | ||
(e) an officer of NAMA (within the meaning of the Act of 2009); | ||
(f) HBFI; | ||
(g) an officer of HBFI. | ||
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Disclosure of confidential information | ||
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22. (1) Except in the circumstances specified in subsection (3) a person shall not disclose confidential information obtained by him or her while performing functions as— | ||
(a) a member of the board of HBFI or a HBFI group entity, | ||
(b) an officer of HBFI, | ||
(c) an officer of a HBFI group entity, | ||
(d) an adviser, consultant or other person providing services to HBFI or a HBFI group entity, or | ||
(e) a member of staff of an adviser, consultant or other person providing services to HBFI or a HBFI group entity. | ||
(2) A person who contravenes subsection (1) commits an offence and shall be liable— | ||
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or | ||
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both. | ||
(3) A person does not contravene subsection (1) by disclosing confidential information where the disclosure— | ||
(a) is made in the performance of functions of HBFI or any HBFI group entity, | ||
(b) is made to or authorised by HBFI or any HBFI group entity, | ||
(c) is made to the Minister, | ||
(d) is made to the NTMA or NAMA, | ||
(e) is made by a person in the circumstances referred to in section 35 (2) of the Ethics in Public Office Act 1995 , | ||
(f) is a protected disclosure (within the meaning of the Protected Disclosures Act 2014 ), | ||
(g) is made to a member of the Garda Síochána and, in the opinion of the person making the disclosure, the information may relate to the commission of an offence (whether an offence under this Act or not), or | ||
(h) is required by law. | ||
(4) In this section “confidential information” includes— | ||
(a) information that is expressed by HBFI, or any HBFI group entity, to be confidential either as regards particular information or as regards information of a particular class or description, and | ||
(b) proposals of a commercial nature, loan applications or tenders submitted to HBFI, or any HBFI group entity, by contractors, consultants or any other person. | ||
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Power of Minister to give directions | ||
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23. (1) The Minister may give a direction to HBFI to do or not to do anything specified in the direction. | ||
(2) A direction under subsection (1) shall— | ||
(a) be in writing, and | ||
(b) be consistent with the functions of HBFI (including the obligations imposed on HBFI under section 7 (2)). | ||
(3) HBFI shall comply with a direction given by the Minister in accordance with this section. | ||
(4) As soon as practicable after giving a direction to HBFI, the Minister shall— | ||
(a) cause the direction to be published in Iris Oifigiúil, and | ||
(b) lay a copy of the direction before each House of the Oireachtas. | ||
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Review of achievement of purposes of HBFI | ||
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24. (1) The Minister may from time to time require HBFI to report to him or her regarding the performance of its functions, including its compliance with the obligations imposed on it under section 7 (2). | ||
(2) As soon as practicable after 31 December 2020, and not later than the second anniversary of that date and each subsequent second anniversary while HBFI continues in existence, the Minister shall prepare a report setting out his or her— | ||
(a) assessment as to the extent to which HBFI has performed its functions and complied with the obligations imposed on it under section 7 (2), | ||
(b) assessment as to the ongoing impact of HBFI on the amount of money being made available for the purposes of residential development in the State, | ||
(c) assessment of the amount of money being made available for the purposes of residential development in the State from sources other than HBFI, and | ||
(d) decision as to whether HBFI should continue in operation having regard to the conclusions of the assessments referred to in paragraphs (a) to (c). | ||
(3) In preparing a report under subsection (2), the Minister shall— | ||
(a) seek the views of the board of HBFI on the matters to be assessed by the Minister for the purposes of paragraphs (a) to (c) of that subsection, and | ||
(b) engage in a period of public consultation on the matters to be assessed by the Minister for the purposes of paragraph (c) of that subsection. | ||
(4) Where the views of the board of HBFI are sought under subsection (3)(a), the board may make submissions to the Minister on any other matter that the board considers relevant to the preparation of the report being prepared under subsection (2). | ||
(5) The Minister shall lay a copy of a report prepared under subsection (2) before each House of the Oireachtas as soon as practicable following its preparation. | ||
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Communications with HBFI | ||
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25. (1) Subject to subsections (3) and (8), a person shall not, with the intention of influencing the making of a decision in relation to the performance of the functions of HBFI or the HBFI group entity, communicate, on behalf of another person (in this section referred to as the “principal”), with— | ||
(a) HBFI, | ||
(b) a HBFI group entity, or | ||
(c) a person providing services or advice to HBFI or a HBFI group entity. | ||
(2) Without prejudice to the generality of subsection (1), a reference in that subsection to a decision relating to the performance of the functions of HBFI includes a decision relating to— | ||
(a) the lending of money, or | ||
(b) any other matter that could give rise to an advantage or benefit to a person other than HBFI. | ||
(3) A person does not contravene subsection (1) if— | ||
(a) the person who makes the communication concerned is— | ||
(i) acting in his or her capacity as an adviser to the principal in relation to law, finance or the acquisition, disposal or development of land, | ||
(ii) acting in his or her capacity as an employee of the principal, | ||
(iii) where the principal is not a natural person— | ||
(I) a shareholder in, or | ||
(II) a person exercising control (within the meaning of section 4 (2) of the Value-Added Tax Consolidation Act 2010 ) over, | ||
the principal, | ||
(b) the communication concerned is made without an intention to benefit, or confer an advantage on, any specific person, or | ||
(c) where the person concerned publishes, as soon as practicable following the communication, a notice in a national daily newspaper, published and circulating in the State, stating— | ||
(i) the principal’s name, | ||
(ii) the address (or principal address) at which the principal carries on business or (if there is no such address) the address at which the principal ordinarily resides, | ||
(iii) the principal’s business or main activities, | ||
(iv) any e-mail address, telephone number or website address relating to the principal’s business or main activities, | ||
(v) any registration number issued to the principal by the Companies Registration Office, and | ||
(vi)(if a company) the address of the principal’s registered office, | ||
(vii) the date of the communication, and | ||
(viii) the subject matter of the communication and the result it was intended to secure. | ||
(4) A person who believes that he or she has been communicated with in contravention of subsection (1) shall, as soon as practicable, report to a member of the Garda Síochána— | ||
(a) that the communication was made, | ||
(b) the details of the communication made, and | ||
(c) the name of the person who communicated with him or her. | ||
(5) A person who contravenes subsection (1) commits an offence. | ||
(6) A person who fails to comply with subsection (4) commits an offence. | ||
(7) A person who commits an offence under this section shall be liable on summary conviction to a class D fine or imprisonment for a term not exceeding 6 months or both. | ||
(8) The person on whose behalf a communication is made which gives rise to an offence under subsection (1) does not commit an offence. | ||
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Disapplication of certain provisions of Companies Act to HBFI | ||
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26. (1) The following provisions of the Companies Act shall not apply to HBFI or a HBFI group entity: | ||
(a) section 220(8); | ||
(b) Chapter 5 of Part 5. | ||
(2) Section 969 of the Companies Act shall not apply to HBFI. | ||
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PART 7 Local Property Tax | ||
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Definition (Part 7) | ||
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27. In this Part, “Act of 2012” means the Finance (Local Property Tax) Act 2012 . | ||
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Amendment of section 24 of Act of 2012 | ||
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28. Section 24 of the Act of 2012 is amended in subsection (3) by the substitution of “notification, direction, statement, declaration, claim” for “notification”. | ||
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Amendment of section 64 of Act of 2012 | ||
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29. Section 64 of the Act of 2012 is amended— | ||
(a) by the insertion of the following definition: | ||
“ ‘Income Tax Regulations’ means the Income Tax (Employments) Regulations 2018 ( S.I. No. 345 of 2018 );”, | ||
(b) in the definition of “net emoluments”— | ||
(i) by the substitution of “Regulation 31 of the Income Tax Regulations” for “Regulation 41 of the PAYE Regulations”, | ||
(ii) by the substitution of the following paragraph for paragraph (a): | ||
“(a) the Income Tax Regulations, of income tax,”, | ||
and | ||
(iii) by the substitution of “has been made.” for “has been made;”, | ||
and | ||
(c) by the deletion of the definition of “PAYE Regulations”. | ||
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Deletion of section 73 of Act of 2012 | ||
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30. The Act of 2012 is amended by the deletion of section 73. | ||
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Payment of local property tax deducted by employer | ||
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31. The Act of 2012 is amended by the substitution of the following section for section 74: | ||
“74. (1) Subject to section 72(1), an employer shall be accountable for the amount of local property tax deductible, and shall be liable to remit that amount to the Revenue Commissioners, as if it were an amount of income tax deductible in accordance with Chapter 4 of Part 42 of the Act of 1997 and the Income Tax Regulations. | ||
(2) An employer shall remit to the Collector-General the amount of local property tax which the employer is directed under section 65 to deduct and the remittance shall be made at the same time and in the same manner as the remittance of income tax which the employer is required to make under section 985G(3)(b) of the Act of 1997.”. | ||
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Amendment of section 75 of Act of 2012 | ||
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32. Section 75 of the Act of 2012 is amended by the substitution of the following subsection for subsection (1): | ||
“(1) Without prejudice to any action which may be taken under section 76, where an employer who was liable to remit an amount of local property tax in accordance with section 74, which amount was to be determined in accordance with section 72(4), failed to remit this amount and— | ||
(a) did not notify the Revenue Commissioners in accordance with section 72(5)(b), or | ||
(b) notified the Revenue Commissioners in accordance with section 72(5)(b), but remitted a lesser amount than the amount specified in the notification, | ||
the revenue commissioners may give notice to the employer of the amount which the employer failed to remit.”. | ||
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Notification by employer | ||
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33. The Act of 2012 is amended by the insertion of the following section after section 78: | ||
“78A.On or before the making of a payment by an employer of any emoluments to a liable person in respect of whom the employer was given a direction under section 65, the employer shall notify the Revenue Commissioners of— | ||
(a) the name and personal public service number of the liable person, | ||
(b) the date of payment of the emoluments, and | ||
(c) the total amount of local property tax deductible from the emoluments.”. | ||
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Declaration by employer | ||
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34. The Act of 2012 is amended by the substitution of the following section for section 79: | ||
“79. (1) In this section, ‘filing date’, in relation to a month, means the day that is 15 days from the last day of the month. | ||
(2) An employer shall, on or before the filing date of a month, send to the Revenue Commissioners, in relation to a liable person in respect of whom the employer was given a direction under section 65, a declaration specifying the total local property tax deducted in respect of the month. | ||
(3) Where the Revenue Commissioners issue a statement to an employer which sets out, in summary form in respect of a month, the total amount of local property tax deducted by the employer, the details of the statement shall on the filing date of the month, or, where the statement is issued after the filing date of the month, on the later date, be deemed to be a declaration made by the employer in respect of that month for the purposes of subsection (2). | ||
(4) Subsection (3) shall not apply where a statement referred to in that subsection is issued to an employer and the details on the statement do not accurately reflect the liability of the employer under section 74(1). | ||
(5) Where subsection (4) applies, the employer concerned shall ensure that the liability of the employer under section 74(1) in respect of the month concerned is accurately reflected in the declaration required under subsection (2) in respect of the month concerned.”. | ||
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Deletion of section 80 of Act of 2012 | ||
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35. The Act of 2012 is amended by the deletion of section 80. | ||
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Amendment of section 119 of Act of 2012 | ||
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36. Section 119 of the Act of 2012 is amended by the substitution of the following subsection for subsection (2): | ||
“(2) Local property tax which is deductible by an employer under section 72 shall be payable at the time referred to in section 74(2).”. | ||
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Amendment of section 133 of Act of 2012 | ||
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37. Section 133 of the Act of 2012 is amended in subsection (2) by the substitution of “31 December 2018” for “31 December 2017”. | ||
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Amendment of section 145 of Act of 2012 | ||
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38. Section 145 of the Act of 2012 is amended— | ||
(a) in paragraph (a) of subsection (1), by the substitution of “a notification under section 78A or a statement,” for “any statement, other than the statement required under section 79,”, | ||
(b) in subsection (2), by the substitution of “declaration” for “statement” in each place where it occurs, and | ||
(c) in subsection (4), by the substitution of “Income Tax (Employments) Regulations 2018 (No. 345 of 2018)” for “PAYE Regulations”. | ||
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Commencement (Part 7) | ||
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39. Sections 28 to 36 and section 38 shall apply from 1 January 2019 in respect of emoluments (within the meaning of Part 10 of the Finance (Local Property Tax) Act 2012 ) paid on or after 1 January 2019. |
