Finance Act 2016
December 14, 2016
Introduction
Finance Act 2016 was signed into law by the President on 25 December 2016.
The Act contains a number of positive measures from a business perspective as follows:
• Special Assignee Relief Programme (SARP) has been extended to the end of 2020
• Foreign Earnings Deduction (FED) has been extended to the end of 2020 and the number of days which must be spent abroad in order to qualify has also been reduced
• Start Your Own Business Relief has been extended to businesses set up in 2017 and 2018
• Full interest relief for landlords is to be restored gradually by 2021
• The 20% rate of tax which applies to disposals by entrepreneurs has been reduced to 10%
From a personal tax perspective there are also some positive measures as follows:
• The earned income credit for the self-employed has been increased
• The three lower rates of USC have been reduced by .5%
• The rate of DIRT is to be reduced gradually returning to 33% in 2020
• Capital Acquisitions Tax (CAT) tax free thresholds have been increased
• A Help To Buy Scheme has been introduced to assist First Time Purchaser under which rebates of income tax and DIRT 4 years may be claimed
On the negative side apart from the increase in the earned income credit and a small increase in the Home Carer credit, there have been no changes in income tax rates or tax credits. In addition CAT relief for gifts and inheritances of dwelling houses has been significantly restricted so that gifts will only qualify for relief in very limited circumstances. Relief in respect of inheritances of houses will only apply where the house has been occupied by the deceased as their main residence.
Business Taxation
Special Assignee Relief Programme
Under the special assignee relief programme an employee who comes to work in the State can claim exemption from income tax on 30% of their employment income in excess of €75,000 for a 5 year period. Prior to Finance Act 2016 the relief only applied to employees arriving in the State up until the end of 2017. This has now been extended to employees arriving in the State up to the end of 2020.
Foreign Earnings Deduction
For the tax years 2012 to 2017 employees who spend at least 40 days working abroad in a 12 month period in certain countries are entitled to claim a deduction of up to €35,000 from their income liable to income tax. The relief has been extended to include tax years up to and including 2020. In addition the number of days which an employee must spend working abroad in a 12 month period had been reduced from 40 to 30 days and the countries in which the individual can work and qualify for the relief has been extended to include the Republic of Colombia and the Islamic Republic of Pakistan.
Start Your Own Business (SYOB)
Finance (No. 2) Act 2013 introduced an income tax exemption on business profits of up to €40,000 per annum for the first two years for long term unemployed individuals who set up a new business. The relief originally applied to new businesses set up in the period 25 October 2013 to 31 December 2016. The Act extends the exemption to new businesses established in 2017 and 2018.
Living City Initiative
The living city initiative was provided for in Finance Act 2013 to encourage the regeneration of Georgian areas of towns and cities. Under the scheme capital allowances may be claimed in respect of expenditure on the conversion and refurbishment of houses by owner occupiers and on the refurbishment of certain commercial premises. The Act makes a number of changes to the scheme as follows:
• Relief on residential properties is extended to lessors
• The floor area restrictions have been removed
• A minimum required spend of 10% of the market value of the property for relief to apply has been replaced with a requirement to spend a minimum of €5,000
• Individuals who receive State grants are no longer excluded from claiming relief however the amount of expenditure qualifying for relief is reduced by three times the amount of the grant received
• Relief claimed in respect of residential properties has been included as a relief to which the High Earner’s restriction applies (relief in respect of commercial properties was already subject to the restriction prior to Finance Act 2016).
The scheme is to commence on the issue of a Commencement Order by the Minister for Finance.
Rental Income – Allowable Interest
Since 1 January 2009, only 75% of interest on borrowings to purchase, repair or improve a residential property may be claimed as a deduction against rental income. Finance Act 2015 relaxed this rule slightly by providing that if a landlord lets a premises for three years to a tenant who qualifies for rent supplement or where the house is let to a housing authority for social housing purposes, then the 25 per cent disallowed will be given as a tax deduction in full in the year after the end of the three-year period.
The Act proposes to restore a full interest deduction to all landlords of residential properties gradually over the next 4 years with a full deduction being available from 2021 onwards. In the intervening years the amount of interest deductible will be as follows:
Year Interest Deductible
2017 80%
2018 85%
2019 90%
2020 95%
2021 100%
Capital Allowances for Energy Efficient Equipment
Capital allowances of 100% of expenditure on certain energy efficient equipment may be claimed in the year in which the expenditure is incurred. Prior to Finance Act 2016 only companies were entitled to claim these accelerated allowances. With effect for 2017 and subsequent years the allowances may be claimed by non-corporates such as sole traders.
Farm Profits
Full-time farmers can elect to be taxed on the average of their farm profits/ (losses) for a 5 year period. The Act provides that farmers who have made this election can make a further election in any particular year to be taxed as if they had not elected for averaging. Where the election to opt out of averaging for a particular year is made the additional tax which would have been payable is payable in four equal annual instalments. The election to opt out may be made for the tax year 2016 and subsequent years.
Employment and Investment Incentive (EII)
Finance Act 2014 provided that the initial (30/40ths of the investment made) relief given for EII investments would not come within the High Earners restriction provided the investment was made before 1 January 2017. The Act now provides that the restriction will not apply to investments made on or after 1 January 2017. Relief for the remaining 10/40ths of the investment made was never subject to the High Earners restriction.
Expense payments for non-executive directors
Finance Act 2015 introduced an exemption from income tax and USC for travel and subsistence expenses paid by a company for a non-resident non-executive director attending meetings on behalf of the company, and for the reimbursement of such expenses where they are incurred by the director. Finance Act 2016 has introduced a more restricted exemption for resident non-executive directors. The Act provides that travel and subsistence expenses paid by a company for a resident non-executive director, and the reimbursement of such expenses, are exempt from income tax and USC provided the amounts paid do not exceed Civil Service rates for travel and subsistence. In addition the exemption only applies to directors whose fees for acting as director do not exceed €5,000 per annum (or the annualised equivalent of €5,000).
Irish Real Estate Funds
In September when announcing changes to be made to legislation applying to section 110 companies, the Minister for Finance indicated that further proposals targeting the use of funds in the Irish property market were also being considered. The Finance Act now contains provisions which tax unit holders, who would not otherwise be subject to tax, at 20% on distributions from and disposals of units in Irish Real Estate Funds (IREFs).
An IREF is a regulated fund (or a sub-fund of an umbrella fund), other than a UCITS, which derives 25% or more of its value from IREF assets i.e.:
• Land in the State
• Minerals in the State and rights interest or other assets in relation to searching for minerals
• Shares in a Real Estate Investment Trust (REIT)
• Unquoted shares deriving their value or greater part of their value from any of the above
• Loans secured on, and which derive their value or greater part of their value from land in the State (other than loans issued by a section 110 company as part of a Collateralised Loan Obligation/Commercial Mortgage Backed Securities/Residential Mortgage Backed Securities transaction and loans which are part of a loan origination business carried on by the fund)
• Units in an IREF
A fund can also be regarded as an IREF even if the 25% value test outlined above is not satisfied, where it would be reasonable to consider that the main purpose, or one of the main purposes of the fund was to acquire IREF assets or to carry on an IREF business. An “IREF business” means activities involving IREF assets which would include, but is not limited to, dealing in or developing land or a property rental business.
An IREF is required to withhold tax at 20% from payments made to certain unit holders. The withholding tax applies to distributions and to redemptions. Where a distribution is in the form of the issue of additional units to the unit holder, the IREF must reduce the amount of units issued by the amount of the withholding tax due. For other distributions made in a non-cash form, the IREF is liable to pay the amount of the withholding tax which would be due if a cash payment had been made. The withholding tax also becomes due when an IREF ceases to be an IREF or a regulated fund. The withholding tax only applies to the “IREF taxable amount” which is essentially the amount of the distribution/redemption proceeds which are attributable to IREF profits. IREF profits are profits or gains from the IREF business excluding unrealised profits and profits from the sale of assets for at least 5 years, distributions from unquoted companies deriving their value, or greater part of their value from land and profits or gains from REITS other than property income dividends. Distributions/redemptions are deemed to come proportionately from IREF and other profits.
The withholding tax only applies in the case of unit holders who are “specified persons”. Broadly specified persons are persons such as non-residents who are not liable to investment undertaking tax under the gross roll-up regime for Irish funds. The definition of “specified persons” excludes the following investors:
• Irish and EU pension funds
• Irish, EU and EEA regulated funds
• Irish, EU and EEA life assurance companies and funds
• Charities
• Credit unions
• Section 110 companies
The unit holder is chargeable to tax under Case V in respect of the IREF taxable amount. The income is liable to tax at 20% but is not to be taken into account in computing total income for other tax purposes. If withholding tax has been applied to the amount liable to tax under Case V this is treated as a payment on account in respect of the tax due by the unit holder.
A unit holder who is a specified person is also liable to tax under Case V on the IREF taxable amount where the unit holder disposes of his units in the IREF to someone other than the IREF or sells or transfers the right to receive any profits from the IREF without transferring the unit itself. Furthermore in such cases where the consideration for the disposal exceeds €500,000, the purchaser is required to withhold tax at 20% from the consideration.
For the purpose of making a claim for double taxation relief, where the unit holder holds 10% or more of the units in an IREF, the IREF taxable amount is treated as income from immovable property, thus ensuring that taxing rights under any treaty will be retained by Ireland. Where the unit holder holds less than 10% of the units, the IREF taxable amount is treated as a dividend. Thus a unit holder may be entitled to a refund of some or all of withholding tax suffered depending on the terms of the relevant treaty.
The new rules apply to accounting periods commencing on or after 1 January 2017 but will also apply to funds who take a decision after 20 October 2016 to change their accounting period so as to avoid the new rules.
Section 110 Companies
Section 110 companies are special purpose vehicles established under S.110 of the Taxes Consolidation Act 1997. The purpose of a section 110 company is to hold and manage certain financial assets. There is a special tax regime for section 110 companies. Unlike normal trading companies, profits are taxed at 25% but are calculated in the same manner as trading profits. Generally where a company pays interest in excess of a normal commercial rate or where the amount of interest payable is dependent on the company’s profits, such interest is treated as a distribution and is not tax deductible. In the case of section 110 companies such interest is deductible provided the following conditions are satisfied:
• The interest is paid to an Irish resident or a person within the charge to Irish tax, or
• The interest is paid to a pension fund, government body or person resident in an EU/EEA/DTA country which is exempt from tax, or
• The interest is subject to tax in an EU/EEA/DTA country or
• Tax is withheld from the payment
The fact that profits can be paid out by way of tax deductible interest meant that essentially a section 110 company could move all its profits out to another entity using what are known as profit participating loans and effectively operate on a tax neutral basis.
The Finance Act has made changes to the taxation of profits derived by section 110 companies from holding assets deriving their value from land in the State. The Act provides that profits of a section 110 company arising from a “specified property business” must be treated as a separate trade. The normal rules dealing with the taxation of section 110 companies apply to these profits (i.e. taxed at 25% and profits calculated in the same manner as trading profits) except that further restrictions are placed on the extent to which the interest on profit participating loans relating to its specified property business may be deducted. Essentially interest on such loans, in excess of a normal commercial rate, is only deductible in the following cases:
• The interest is paid to an Irish resident individual within the charge to income tax or a person within the charge to corporation tax, or
• The interest is paid to an Irish exempt pension fund or its equivalent in the EU/EEA, or
• The interest is paid to an individual resident in the EU/EEA or a company registered in the EU/EEA and the interest is taxed in the EU/EEA or
• The interest is paid to an IREF
• The interest is paid to certain regulated Irish funds
• Tax is withheld from the payment
A “specified property business” is broadly a business of managing loans or agreements whose value, or the greater part of whose value, is derived from or secured on land in the State. It also includes managing units in an IREF.
Certain types of securitised transactions are not included in the definition of a specified property business, namely:
• CLO (Collateralised Loan Obligation) transactions
• CMBS/RMBS transactions (Commercial Mortgaged Backed and Residential Mortgage Backed Securities)
• Loan origination business
The above provisions apply with effect for accounting periods commencing on or after 6 September 2016. Accounting periods beginning before 6 September will be divided into two accounting periods one ending on 5 September and a new accounting period beginning on 6 September.
Section 110 companies are required to notify Revenue that they intended to operate as a section 110 company. Prior to the Finance Act the notification had to be made on or before filing its return for the first period operating as a section 110 company. The Finance Act provides that this notification must now be made within 8 weeks of commencing activities and must provide information regarding its activities, assets acquired and intra group and connected party activities. Where it is already more than 8 weeks since a section 110 company commenced activities and it has not yet notified Revenue this information must be provided within 8 weeks of 1 January 2017.
Anti-Avoidance
Qualifying Disclosures
A person who deliberately or carelessly makes an incorrect return or fails to make a return can be liable to a penalty of up to 100% of the tax underpaid. Where the person makes a “qualifying disclosure” the amount of the penalty payable can be reduced to as low as 3% depending on the seriousness and level of the tax default (i.e. whether the default was deliberate or careless and the amount of the tax underpaid). Furthermore, where a person makes a qualifying disclosure, they will not be investigated with a view to prosecution in relation to the matter which is the subject of the disclosure nor will their settlement be published in Revenue’s quarterly published list of tax defaulters. A “qualifying disclosure” is a full and complete disclosure to Revenue in writing setting out details of tax underpaid accompanied by a payment of the tax underpaid and interest thereon.
The Finance Act provides that any disclosure made on or after 1 May 2017 will not be a qualifying disclosure where it relates to offshore matters. In addition a disclosure in relation to other matters will not be a qualifying disclosure where the person making the disclosure has offshore matters which give rise to the payment of a penalty unless the penalty arises due to careless rather than deliberate behaviour, the tax underpaid was less than 15% of the tax due and the person fully co-operated with Revenue.
Tax Defaulters List
Revenue is required to publish quarterly a list of all persons on whom a penalty or fine was imposed by a court or who reached a settlement with Revenue in lieu of claims and penalties. Details of persons who make a settlement with Revenue are not required to be published where the settlement amount does not exceed €33,000 or where the amount of the penalty included in the settlement does not exceed 15 per cent of the tax included in the settlement. The Finance Act has clarified that where a person makes a settlement part of which relates to a qualifying disclosure, in determining whether the €33,000 limit has been breached the amount of the settlement relating to the qualifying disclosure is disregarded. Furthermore where the €33,000 limit is exceeded the part of the settlement relating to the qualifying disclosure will not be published.
Personal Tax
Universal Social Charge (USC)
As announced in the Budget, the three lower rates of USC are being reduced by .5% and second lowest rate band (now 2.5%) is being increased by €104. The 5% rate will apply to income over €18,772. The new standard USC bands and rates for 2017 compared with 2016 are as follows:
2017 Rate 2016 Rate
On the first €12,012 0.5% On the first €12,012 1.0%
On the next €6,760 2.5% On the next €6,656 3.0%
On the next €51,272 5.0% On the next €51,376 5.5%
The remainder 8.0% The remainder 8.0%
Individuals whose income does not exceed €13,000 remain exempt from USC. An additional 3% is still payable by individuals with non-PAYE income in excess of €100,000. Individuals aged 70 and over with income of €60,000 or less and individuals with a full medical card continue to pay USC on all income above €12,012 at the second lowest rate (i.e. 2.5% for 2017 down from 3%).
Changes in tax credits
The earned income credit, introduced by Finance Act 2015 for self-employed and proprietary directors who are not entitled to the employee tax credit, has been increased from €550 to €950.
The home carer tax credit has been increased to €1,100 from €1,000.
A new “fisher tax credit” of €1,270 has been introduced for 5 years for individuals who spend not less than 80 days at sea actively engaged in sea fishing.
Apart from the above changes, there have been no changes in tax credits, the standard rate tax band or the standard and higher rates of tax.
Deposit Interest Retention Tax (DIRT)
The Act proposes to reduce the rate of DIRT gradually over the next four years from its current rate of 41% to 33% in 2020. From 2017 to 2020 the rate of DIRT will be as follows:
Year DIRT Rate
2017 39%
2018 37%
2019 35%
2020 33%
As before the Act, interest on EU deposit accounts will also be liable to tax at the DIRT rate instead of at the individual’s marginal tax rate and interest on foreign non-EU deposit accounts will be liable to tax at the DIRT rate to the extent the interest would otherwise have been liable to tax at the 20% rate of tax. Where an individual’s tax liability on interest has not been paid before the due date for the filing of a tax return under the self-assessment system, foreign interest will be liable to tax at 40% instead of at the DIRT rate.
Home Renovation Incentive (HRI) Scheme
The HRI scheme, which was due to expire on 31 December 2016, will now run to 31 December 2018. The scheme provides relief by way of an income tax credit, granted over the two years following the year in which the work is carried out, of 13.5 per cent of qualifying home improvement expenditure. The relief which originally could only be claimed by owner occupiers, was extended to landlords by Finance Act 2014 provided the property was occupied by a tenant under a tenancy registered with the Private Residential Tenancies Board. Finance Act provides that the relief may be claimed by occupiers of a property owned by a housing authority where rent is payable by the tenant and the housing authority has given its prior written consent to the work being carried out.
Help to Buy Scheme
As announced in the Budget a Help to Buy scheme has been introduced to provide assistance to first time purchasers buying or building a dwelling. Under the scheme individuals who have not previously purchased or built a dwelling can claim a rebate of income tax and DIRT paid for the four previous years. The rebate which may be claimed is the lesser of:
• €20,000
• The amount of income tax (i.e. not USC or PRSI) and DIRT paid by the individual for the four preceding years or
• 5% of the “purchase value” of the qualifying dwelling. The purchase value of a dwelling is the price paid or the in the case of a self-build, the mortgage provider’s valuation of the dwelling.
The rebate does not apply where the cost/valuation of the dwelling exceeds €500,000. This limit was originally €600,000 but was reduced to €500,000 at Select Committee stage. The €600,000 limit will continue to apply where a contract for the purchase of a house or, in the case of a self- build, where the first tranche of a qualifying loan is drawn down between 19 July and 31 December 2016.
There must be a mortgage taken out to purchase or build the dwelling of a minimum of 70% of the market value of the property which is secured on the property. In applying this test, only loans taken out with a bank, building society or similar financial institution are taken into account.
The rebate is paid to the vendor of the residence, in the case of a purchase, or into the claimants loan account in the case of a self-build, except in the case of contracts entered into for the purchase of a dwelling in 2016 in which case the payment is made to the claimant. The rebate may be clawed back if the purchase of the dwelling or self-build is not completed within 2 years. All or part of the rebate is clawed back if the claimant ceases to occupy the property as their sole or main residence within a 5 year period. The clawback is as follows:
• Within year 1 – full repayment
• Between years 1-2 – 80% repayment
• Between year 2-3- 60% repayment
• Between year 3-4 – 40% repayment and
• Between year 4-5 – 20% repayment
Rent a Room Relief
An individual who rents a room in their main residence is exempt tax on the rent received provided it does not exceed a certain limit. The limit of €12,000 is increased by the Act to €14,000 for 2017 and subsequent years.
Pensions
The Act makes a number of technical changes to legislation dealing with PRSAs to prevent what Revenue perceived as “tax avoidance opportunities” in relation to such products.
A PRSA is a personal pension plan taken out by an individual. While generally a PRSA is taken out by self-employed individuals or employees in non-pensionable employments to provide for their retirement, they can also be taken out by employees in pensionable employments to top up their employment pensions. One of the benefits of a PRSA is that the individual can continue to make contributions after they have retired (up to age 75) to the PRSA. An individual can only receive benefits from a PRSA between age 60 and 75. Once an individual reaches age 75 they can no longer access benefits from the PRSA.
When an individual receives benefits from their PRSA the PRSA is regarded as “vested”. Once a PRSA is vested the PRSA becomes subject to deemed distribution rules which means that if annual distributions are less than 6% of the value of the PRSA, tax is payable as if a distribution of 6% had been made. In addition the vesting of a PRSA is a benefit crystallisation event (BCE) which means that at that time the fund is valued and if it exceeds the current standard fund threshold (€2m) the excess is subject to tax at 40%.
There had been some uncertainty as to whether a PRSA was vested where benefits had not been drawn down prior to the 75th birthday of the holder. The Act now confirms that a PRSA will be treated as having vested on the holder’s 75th birthday if it has not previously vested. In addition to coming within the imputed distributions regime and being a BCE, as a result of becoming a vested PRSA on the death of the PRSA holder the fund is treated as a distribution to the holder in the year of death liable to income tax at the holder’s marginal tax rate unless the fund is transferred into an ARF (approved retirement fund) for a spouse or is inherited by a child. If the child is aged at least 21 income tax at 30% is payable otherwise CAT at 33% is payable by the child depending on whether the value of the fund inherited exceeds the child’s unutilised tax free CAT threshold. Prior to the Finance Act amendments, an unvested PRSA would have become part of the holder’s estate, no income tax liabilities would have arisen and the recipient would be liable, or not depending on their personal CAT position, to CAT on the amount inherited.
Capital Taxes (CGT/CAT)
Capital Gains Tax (CGT)
Capital Gains Tax Relief for Entrepreneurs
A reduced 20 per cent rate of CGT was introduced by Finance Act 2015 for gains arising on disposals of ‘chargeable business assets’ on or after 1 January 2016, up to a lifetime limit of €1m. Gains in excess of €1m remain liable to CGT at its current rate of 33 per cent. Chargeable business assets include assets used for the purpose of a business, i.e. other than investment or land dealing or developing businesses, and shares in a company carrying on a qualifying business. The Act reduces the 20% rate to 10% for disposals on or after 1 January 2017.
Capital Gains Tax Relief for Farm Restructuring
Relief from capital gains tax was introduced by Finance Act 2013 for the sale or exchange of farm land where Teagasc has certified that the sale or exchange has taken place for farm restructuring purposes. The Act extends the period within which the sale of land and subsequent purchase of land must take place in order to qualify for relief to 31 December 2019 from 31 December 2016.
Capital Acquisitions Tax (CAT)
Gift and Inheritance Tax Thresholds
The cumulative gifts and inheritances which an individual can receive tax free over a lifetime (the tax free thresholds) have been increased as follows:
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