The Irish Finance Act 2017 ("FA 2017") was signed into law by the Irish President on 25 December 2017. It introduces a number of important changes and enhancements to Irish tax law. This update summarises the main changes for Irish and international investors, companies and individuals which include:
(a) significant changes relating to real estate, including an increase in the rate of stamp duty on Irish commercial real estate from 2% to 6% and reform of the capital gains tax ("CGT") treatment of certain Irish land acquired between 2011 and 2015;
(b) KEEP - the introduction of a tax advantaged employee share option programme; and
(c) new provisions confirming the tax treatment of Irish mergers.
The Irish Government has also used the Irish Budget 2018 to commence a number of important tax consultations in light of international measures such as the OECD Base Erosion and Profit Shifting initiative ("BEPS") and the EU Anti-tax Avoidance Directives. These are likely to form the basis of future tax changes as Ireland continues to maintain its status as a transparent and competitive economy fully compliant with international tax initiatives.
Stamp Duty – Commercial Property and Other Assets
Budget 2018 increased the stamp duty rate on Irish commercial property acquisitions from 2% to 6%. The 6% rate is applicable to sales or long leases of commercial property after 10 October 2017.
Transitional arrangements were introduced for transactions where binding contracts were entered into prior to 11 October 2017. Where these applied, the 2% rate applied. However, the contract had to complete by 1 January 2018 and therefore this left a very short window for investors to conclude transactions.
Although the primary focus of these changes has been commercial real estate, the increase also applies to other forms of non-residential Irish property which can be subject to Irish stamp duty such as business assets, debtors, loans, goodwill and certain IP. In each case, there may be other exemptions available on the transfer of such property.
Stamp Duty – Residential Property and Residential Development Land
Residential property will continue to be subject to 1% stamp duty rates on consideration under €1m. A 2% rate will apply over €1m. For multi-residential unit acquisitions, such as a block of apartments, the position is therefore unchanged.
Perhaps conscious of the impact of the stamp duty increase on residential development land, a rebate mechanism is provided. Essentially, the 6% rate is applied initially, but a 2/3rds rebate is applied (reducing the rate to 2%) if certain conditions are met, principally relating to construction commencing within a defined period.
The detailed provisions of the rebate deserve close scrutiny by investors. The scheme is highly technical and contains a large number of conditions. The rebate only applies where construction operations for residential property commence before January 2022. The construction operations must commence within 30 months of the date the land was conveyed to the purchaser. Helpfully, the time taken to conclude certain planning appeals can be added to the 30 months. Prior to commencement of construction operations, a commencement notice must have been sent to, and acknowledged by, a building control authority such as the relevant County Council. Where the residential development is being carried out in phases, repayments can be sought on a phased basis.
In our view, the funding costs associated with the rebate and management of the rebate process are likely to feature in any joint venture agreement, or financing agreement, relating to residential development.
Stamp Duty – Transfers of Shares in Property Holding Companies
Perhaps conscious of the need to prevent stamp duty avoidance by transferring property via a corporate vehicle or other intermediate entity, FA 2017 introduced an additional stamp duty charge on transfers of companies, funds and partnerships which derive over 50% of their value from non- residential property. The 6% rate is now applicable to these transfers in certain cases.
The provisions are primarily relevant if the entity holds non-residential property, which has been, or is being, developed. It also applies if the land is held as trading stock or was acquired to obtain a gain. The transaction must transfer control of the underlying property, so in general, transfers of minority interests should not be captured. If the land held by the entity is ultimately used to develop residential property, the stamp duty rebate scheme described above may be applicable and this will reduce the rate to 2%.
These changes will impact existing structures including where Irish land is held through an Irish regulated fund, such as an ICAV, partnership or investment company, or through a non-Irish entity where previously no stamp duty would have been expected.
CGT on Direct Land Holdings
In 2011, the Government introduced a "CGT holiday" for land and buildings which provided a CGT exemption to disposals of land which was acquired between 7 December 2011 and 31 December 2014 (inclusive), provided the land was held for seven years.
FA 2017 has shortened the holding period to four years. The full CGT exemption applies provided the property is sold between the 4th anniversary and 7th anniversary of the date the property was acquired.
It is worth noting that the original CGT measure applied on an acquisition of property within any EEA State by an Irish resident. Hence the revised relief will be attractive from an Irish standpoint to those who acquired European property between 7 December 2011 and 31 December 2014 although of course taxation may also arise in the country where the property is located.
The changes apply to disposals made on or after 1 January 2018.
Section 110 Companies and Real Estate
Finance Act 2016 introduced several changes to the taxation of Irish finance vehicles (known as "section 110 companies"). These restrict the deductibility of financing expenses where the profits of the company are derived from certain Irish loans and related assets. FA 2017 will result in those restrictions being extended to profits derived from shares in companies which derive the greater part of their value from Irish land. Previously, these were not within the scope of the restrictions.
The new rules are not applicable to section 110 companies which qualify as "loan origination" vehicles, or when other exemptions apply such as to CLO and CMBS/RMBS vehicles and therefore should not be material to many institutional clients for whom those exemptions apply.
Revenue guidance on the operation of the rules introduced in Finance Act 2016 is awaited.
Indirect Interests in Property Entities Including Finance Vehicles and Funds
Irish CGT applies to disposals of shares and securities which derive their value from Irish land, even indirectly. Disposals by non-Irish investors of shares and securities which are quoted on a stock exchange are exempt. The initial draft legislation sought to restrict this to cases where the shares and securities were actively and substantially traded on such stock exchange. These restrictions were not enacted and therefore the original exemption is maintained.
Disposals of shares in Irish regulated real estate funds ("IREFs") are not subject to CGT. Interestingly FA 2017 clarifies that an indirect interest in an IREF is not subject to CGT. This (although may be subject to a charge under the IREF legislation) is consistent with the general structure of the IREF legislation.
Accelerated Capital Allowances for Gyms and Crèches
FA 2017 provides a new incentive for employers who construct childcare facilities or fitness centres for their employees. The changes will result in a 100% tax deduction for eligible plant and machinery. This is available in the year in which the expenditure is incurred. This contrasts with the usual eight year period in which such allowances could be claimed. In addition, allowances at an annual rate of 15% for six years and 10% in year seven (as opposed to 4%) are available on capital expenditure on premises used for such purposes.
It should be noted that there is no requirement for the childcare facilities to be supplied free of charge. An employer could provide the equipment and premises and then install a commercial crèche operator which could charge employees for actually using the facilities.
The tax relief will not commence immediately as EU State Aid approval from the European Commission is required.
Vacant Residential Property
The on-going policy issue concerning the shortage of residential accommodation in Ireland is evidenced in FA 2017 in a number of instances. Significantly, the Minister for Finance is required to deliver a report prior to the end of September 2018 on a potential tax on vacant residential property. This issue has been a political topic for several years. Previously, a small charge was applied to investment properties and holiday homes. This was abolished a number of years ago and the Minister is indicating that some form of tax on vacant houses is a possibility.
KEEP – Tax Advantaged Share Options
Budget 2018 sees the introduction of a new employee share incentive scheme to be known as the Key Employee Engagement Programme ("KEEP") to help small and medium enterprises attract and retain key personnel.
It provides CGT treatment in relation to share options granted to employees working for unquoted SMEs.
Currently, under Irish law, there are employment tax charges when employees exercise share options. Employees will therefore generally only exercise their options immediately prior to a liquidity event, such as a sale or IPO.
Under the KEEP regime, there is no tax charge when the share options are exercised. A CGT liability will arise when the shares are actually disposed of. This should align the taxable event with the receipt of funds.
The new scheme will apply to qualifying share options granted between 1 January 2018 and 31 December 2023. A significant number of qualifying conditions will need to be satisfied. These include:
(a) the shares under option must be ordinary shares, which carry no preferential rights to dividends;
(b) the option exercise price cannot be less than the market value of the shares on the date of option grant;
(c) the shares under option are subject to financial thresholds. An employee's shares under option cannot exceed €100,000 in any one year, or €250,000 in any three consecutive years, or 50% of the annual pay of the individual. The total value of shares under option cannot exceed €3 million;
(d) the options cannot generally be exercised within 12 months of grant;
(e) the company must be an unquoted company, although entities listed on emerging companies markets (such as the ESM in Ireland) can benefit from this programme. The company must also be a small or medium enterprise which restricts it to those which employ fewer than 250 people with an annual turnover of no more than €50m and/or an annual balance sheet total not exceeding €43m; and
(f) the company must carry on trading activities which are taxable in Ireland. Activities such as construction, professional services and land dealing are not able to access the KEEP regime.
The conditions suggest that the KEEP scheme is likely to benefit only specific sectors, such as the technology, innovation and certain services sectors.
FA 2017 introduced a number of measures to encourage the purchase of electric vehicles. A 0% benefit in kind ("BIK") rate will apply where employers purchase electric vehicles for their employees during 2018. This is a significant incentive. Typically, where an employer purchases an ordinary vehicle for their employee the rate of BIK is 30% of the original market value of the car. This is currently a temporary measure during 2018. If it is too successful, it could well be withdrawn in 2019.
Furthermore, where employees charge their electric vehicle at their place of work there will be no BIK charge for the employee.
Corporation Tax Charges
Interest Deductibility in Corporate Transactions
There is tax relief for interest on loans used to acquire or lend to a holding company that holds shares in a trading company. Previously, the legislation denied relief in circumstances where the holding company did not hold the shares in the trading company directly but rather indirectly through intermediate holding companies. This complicated Irish acquisition structures. It had been Irish Revenue practice to grant the relief on a concessionary basis in these circumstances and this has now been formally legislated for. The relief does not appear to extend to circumstances where rental companies are held through multiple holding companies.
Cap on IP Allowances
FA 2017 has re-introduced the 80% cap for intellectual property ("IP") capital allowances and related interest. The cap only applies to IP acquired on or after 11 October 2017. Any excess capital allowances and interest can be carried forward indefinitely or set off against future profits.
Anti-avoidance Rules Impacting Corporate Restructurings
FA 2017 aims to counter avoidance schemes involving individuals extracting value from a company as capital rather than income. These new provisions may impact management buy-outs ("MBOs"), earn-outs and corporate restructurings and specific advice should be taken in such cases.
A new provision (section 135(3A), Taxes Consolidation Act 1997 ("TCA")) applies where one closely held company acquires another closely held company. If the acquirer finances the consideration from the resources of the target entity, the sales proceeds will be treated as a distribution, and therefore subject to income tax. This measure is aimed at cases where shareholders used corporate entities to extract value in capital, rather than income, form. This legislation is broadly drafted and represents a trap for the unwary in the future. The Irish Department of Finance has confirmed that it should not apply to bona fide management buy- outs. The Irish Revenue Commissioners have also published guidance on it.
A new section 135(2A) TCA is introduced to target situations where cash is extracted from a close company through a share redemption or buy-back. It applies where shares of a target company are transferred to another acquiring entity in exchange for an issue of shares to shareholders. Historically, a redemption or buy- back of the shares by the acquiring entity would be claimed as a capital event. FA 2017 prevents this. The amount of capital gain is now limited to the original subscription price paid for the shares in the target entity. Any surplus would be treated as a distribution and, for Irish resident persons, taxed as a dividend.
Changes to CGT Group Definitions
There is CGT relief on the disposal of assets (other than trading stock) within a group of companies.
The eligible "groups of companies" for purposes of the relief was previously limited to companies resident for tax purposes in an EU Member State or an EEA Member State with which Ireland has a double tax treaty (Iceland and Norway).
As a result of the FA 2017 amendments, the definition of "group of companies" means the relief has been extended to companies which are resident for tax in countries with which Ireland has a double tax treaty. This is a welcome extension and is in line with what we understand was prior Irish Revenue practice in this area.
FA 2017 makes a number of changes to the Irish stamp duty and CGT provisions in order to extend certain reliefs available on corporate restructurings to cover mergers which take place under the provisions of the Irish Companies Act 2014 ("CA 2014"). Although Irish corporate law made provision for domestic mergers pursuant to the 2014 Act, the tax regime had no express provisions confirming the tax treatment. The new legislation may increase the use of mergers and provide certainty to corporates and shareholders
Mergers – Stamp Duty
There will be a stamp duty exemption for mergers undertaken in accordance with Chapter 3 of Part 9 of CA 2014. This section provides for mergers of private Irish companies where none of the merging companies are public limited companies. A merger under Chapter 16 of Part 17 of CA 2014, which applies where at least one of the merging companies is a public limited company, may also be exempt from stamp duty. Mergers under either section can take one of three forms:
(a) a merger by acquisition, which is where a company acquires all the assets and liabilities of another company (which is then dissolved without going into liquidation) in exchange for shares in the acquiring company being issued to the members of the dissolved company;
(b) a merger by absorption, where a company transfers all its assets and liabilities to a company that holds all its shares (parent) and is then dissolved without going into liquidation; or
(c) a merger by the formation of a new company, where two or more companies, on being dissolved without going into liquidation, transfers all of their assets and liabilities to a successor company that they form, in exchange for the issue to their members of shares representing the capital of the successor company, with or without any additional cash payment.
In addition, the exemption for intra-group transfers (section 79 Stamp Duties Consolidation Act 1997 ("SDCA")) has been extended to apply to certain mergers by absorption under the new Companies Act 2014 provisions on the transfer of assets from a subsidiary to its parent.
Section 80 SDCA provides relief from Irish stamp duty in the context of company amalgamations and reconstructions where a company acquires another undertaking. Section 80 has also been amended in order to make specific provision for stamp duty relief in the context of mergers undertaken in accordance with Chapter 3 of Part 9, or Chapter 16 of Part 17 of the CA 2014 (i.e. one of the three forms set out above).
Mergers – CGT
Irish tax law has long provided for CGT relief in connection with company amalgamations and reconstructions. This typically applied where one company acquired the business of another entity in consideration for an issue of shares.
FA 2017 extends this relief so that it may apply to mergers or divisions undertaken in accordance with the relevant provisions of the Irish Companies Act 2014, i.e. divisions in accordance with Chapter 4 of Part 9 or Chapter 17 of Part 17, or mergers in accordance with Chapter 3 of Part 9 or Chapter 16 of Part 17, such that the assets transfer in such circumstances on a no gain/no loss basis and therefore no CGT charge arises for the transferor.
The forms which a merger can take have been set out above. A division occurs where there is either (i) a division by acquisition, or (ii) a division by formation of new companies:
(a) Division by acquisition, where two or more companies acquire between them all the assets and liabilities of another company which is dissolved without going into liquidation and for which the shareholders of the dissolved company receive shares in the successor companies (with or without any cash payment).
(b) Division by formation of new companies, this has the same elements as a division by acquisition above, save that the successor companies shall have been formed for the purposes of the acquisition of assets and liabilities of the target.
The taxation of shareholders in such a merger or division has also been clarified in section 587 TCA. The shareholder is treated, in respect of its new shareholding, as if it were the original shareholding, i.e. as if no disposal had occurred. The new shares are treated as though they were acquired at the same time and cost as the old shares and no tax applies to the shareholder at the point of exchange. Similar complementary changes are introduced in other relevant provisions of the TCA.
In 2016 the IREF tax regime was introduced for regulated Irish funds which hold real estate. Many of the amendments made by the FA 2017 merely confirm the Revenue's administrative practices. Changes of this nature include the introduction of an advance clearance system which allows investors which are exempt from withholding tax to receive payments gross.
However, it also removes the exemption from IREF withholding tax which previously applied to profit distributions from disposals of land and buildings held for five years. This comes into effect on or after 1 January 2019 but obviously impacts property which is currently held by funds.
Investors impacted by the IREF changes should note that the first IREF tax returns for 2017 will need to be filed during 2018. The detailed nature of these returns, and their relative novelty, means that affected managers and administrators should take steps to ensure these are filed in an orderly manner.
New Financial Reporting Requirements
Section 18 of FA 2017 empowers the Revenue Commissioners to make regulations requiring Irish investment undertakings, or sub-funds, to provide financial statements to Revenue. It allows the Revenue Commissioners to prescribe the entities to which the requirement relates as well as the date and format of the financial statements. The financial statements will be delivered by electronic means which will likely mean iXBRL accounts.
Administrators and managers are likely to be consulted by Revenue in advance of the regulations. These provisions will not impact the underlying tax treatment of Irish regulated funds.
BEPs and ATAD
FA 2017 contained provisions relating to BEPS and EU Anti-tax Avoidance Directives including the launch of a number of consultations on:
(a) the implementation of the EU Anti-Tax Avoidance Directives, with a view to better understanding the effect of the proposed technical changes to the Irish corporation tax code. This will cover issues such as interest limitation rules, hybrid mismatches, and CFC rules;
(b) the implementation of Actions 8 (Intangibles), 9 (Transfer Pricing – Risk and Capital) and 10 (Transfer Pricing – High Risk Transactions) of the G20/OECD BEPS initiative;
(c) additional considerations regarding Ireland’s domestic transfer pricing rules; and
(d) reform of the Irish dividend tax position.
The outcome of these consultations is likely to be material to anyone undertaking longer term transactions in Ireland as they could impact the future tax treatment. The commitment to consultation should provide stakeholders with the ability to positively impact the process either directly or through industry associations.
Treaty Abuse – Multilateral
FA 2017 has paved the way for implementation of the multilateral instrument ("MLI") which will enable Ireland to update its double tax treaties, while dispensing with the need for individual bilateral negotiation. The MLI includes measures against hybrid mismatches, treaty abuse, avoidance of permanent establishment status and measures to make mutual agreement procedures more effective in the BEPS recommendations.
There are currently over 70 signatories to the convention and six other countries have expressed their intention to sign the MLI. The MLI will enter into force three months after five or more jurisdictions have deposited their instruments of ratification with the OECD. It is anticipated that it will be ratified in autumn 2018 in Ireland and that the Convention will come in to force in January 2019.
We have previously discussed the MLI and how Ireland has, in line with other countries, made certain reservations in relation to the MLI. As set out in FA 2017, those reservations will form the basis of how the MLI is implemented into Ireland's tax treaties.