This chapter first appeared in the International Comparative Legal Guide to Corporate Tax 2019.
1 Tax Treaties and Residence
1.1 How many income tax treaties are currently in force in your jurisdiction?
As of September 2018, 74 treaties have been signed, 73 of which are in force.
1.2 Do they generally follow the OECD Model Convention or another model?
Generally speaking, they follow the OECD Model.
1.3 Do treaties have to be incorporated into domestic law before they take effect?
Yes, but a number of Irish domestic provisions, including certain exemptions from withholding tax, take effect immediately when a treaty is signed.
1.4 Do they generally incorporate anti-treaty shopping rules (or "limitation on benefits" articles)?
No, other than in respect of certain treaties such as the treaty with the US.
Additionally, the OECD's Base Erosion and Project Shifting project recommended that members include in their double tax treaties a limitation-on-benefits test and/or a principal purpose test ("PPT") as a condition for granting treaty relief. This recommendation will be implemented by means of a multilateral instrument ("MLI"). The MLI was signed by Ireland on 7 June 2017 and Ireland has indicated that it will include the PPT in its treaties. Ireland's double tax treaty with another country will be modified by the MLI where both treaty partners have ratified the MLI.
1.5 Are treaties overridden by any rules of domestic law (whether existing when the treaty takes effect or introduced subsequently)?
No, Irish double tax treaties prevail over domestic law. As noted under question 1.3, certain domestic exemptions mirror the treaty relief and indeed may be more favourable and apply before a treaty comes into force.
1.6 What is the test in domestic law for determining the residence of a company?
A company is resident in Ireland if it is incorporated in Ireland or, if not Irish-incorporated, is centrally managed and controlled in Ireland. This latter test is based on case law and focuses on board control, but is a question of fact based on how decisions of the company are made in practice.
If a company incorporated in Ireland is managed and controlled in a treaty state, it may be regarded as resident in that other state under the "tie-breaker" clause of Ireland's double taxation treaty ("DTT") with that state.
2 Transaction Taxes
2.1 Are there any documentary taxes in your jurisdiction?
Generally a document is chargeable to stamp duty, unless exempt, where the document is both:
- listed in Schedule 1 to the Irish Stamp Duties Consolidation Act 1999 (the principal head of charge is a transfer of any Irish property); and
- executed in Ireland or, if executed outside Ireland, relates to property situated in Ireland or to any matter or thing done or to be done in Ireland.
The transferee is liable to pay stamp duty and a return must be filed and stamp duty paid within 45 days of the execution of the instrument.
Stamp duty is charged on the higher of the consideration paid for, or the market value of, the relevant asset at the following rates:
- Shares or marketable securities: 1%.
- Non-residential property: 6%.
- Residential property: 1% on consideration up to €1 million and 2% on the excess.
There are numerous reliefs and exemptions including:
- Group relief on transfers between companies where the transferor and transferee are 90% associated at the time of execution and for two years afterwards.
- Reconstruction relief on a share-for-share exchange or share-for-undertaking transaction, subject to meeting certain conditions.
- Exemptions for transfers of intellectual property, of non-Irish shares and land, loan capital, aircraft and ships.
2.2 Do you have Value Added Tax (or a similar tax)? If so, at what rate or rates?
VAT is a transaction tax based on EU directives as implemented into Irish law. It is chargeable on the supply of goods and services in Ireland and on goods imported into Ireland from outside the EU. Persons in business in Ireland generally charge VAT on their supplies, depending on the nature of the supply.
The standard VAT rate is 23% but lower rates apply to certain supplies of goods and services, such as 13.5%, e.g. on supplies of land and property, and 0%, e.g. on certain food and drink, books, and children's clothing.
2.3 Is VAT (or any similar tax) charged on all transactions or are there any relevant exclusions?
The application of VAT to a supply of goods or services depends on the place of supply of those goods or services. For example, business-to-business supplies of services take place where the recipient is established.
The supply of the following goods and services is exempt from VAT: most banking, insurance and financial services; medical services; education and training services; and passenger transport.
The transfer of certain assets of a business between accountable persons is not subject to VAT where the assets constitute an undertaking capable of being carried on independently.
2.4 Is it always fully recoverable by all businesses? If not, what are the relevant restrictions?
VAT incurred will generally be recoverable as long as it is incurred by a taxable person (a person who is, or is required to be, VATregistered) for the purpose of making taxable supplies of goods and services. VAT incurred by a person who makes exempt supplies is not recoverable. Where a taxable person makes exempt and nonexempt or non-business supplies, VAT recovery will be allowed in respect of the non-exempt supplies only. However, if the VAT incurred cannot be attributed to either (for example, general overheads), the VAT must be apportioned between the taxable and exempt supplies.
2.5 Does your jurisdiction permit VAT grouping and, if so, is it "establishment only" VAT grouping, such as that applied by Sweden in the Skandia case?
Under Ireland's VAT grouping rules, inclusion within a VAT group is on an all-or-nothing basis for a legal entity and so once a branch is included within an Irish VAT group registration the entire legal entity is included. Irish Revenue is still considering the implications of the Skandia decision.
2.6 Are there any other transaction taxes payable by companies?
Certain taxes, including interest withholding tax, dividend withholding tax, professional services withholding tax and relevant contract tax, may be payable depending on the nature of the transaction and the type of business carried on by the parties to the transaction.
2.7 Are there any other indirect taxes of which we should be aware?
Customs duties are payable on goods imported from outside the EU. Excise duty applies at varying rates to mineral oils, alcohol and alcoholic beverages, tobacco products and electricity, and will also apply to certain premises and activities (e.g. betting and licences for retailing of liquor).
There is an insurance levy on the gross amount received by an insurer in respect of certain insurance premiums. The rate is 3% for non-life insurance and 1% for life insurance. There are exceptions for re-insurance, voluntary health insurance, marine, aviation and transit insurance, export credit insurance and certain dental insurance contracts.
3 Cross-border Payments
3.1 Is any withholding tax imposed on dividends paid by a locally resident company to a non-resident?
Dividend withholding tax at 20% applies to dividends paid to nonresident persons. However, a number of exemptions apply in that case, including where payments are made to:
- persons resident in an EU Member State (other than Ireland) or a country with which Ireland has concluded a DTT ("EU/ treaty state");
- companies ultimately controlled by persons who are resident in an EU/treaty state; and
- companies whose shares are substantially and regularly traded on a recognised stock exchange in an EU/treaty state or where the recipient company is a 75% subsidiary of such a company or is wholly owned by two or more such companies.
3.2 Would there be any withholding tax on royalties paid by a local company to a non-resident?
Royalties are not generally subject to withholding tax unless paid in respect of an Irish patent.
No withholding tax will apply to royalties paid in the course of a trade or business to a company resident of an EU/treaty state or paid between "associated companies" in the EU.
It is Irish Revenue's administrative practice since 2010 not to charge withholding tax on royalties payable under a licence agreement executed in a foreign territory which is subject to the law and jurisdiction of a foreign territory (subject to the Irish company's obtaining advance approval from Revenue).
3.3 Would there be any withholding tax on interest paid by a local company to a non-resident?
Payments of "yearly" interest by an Irish corporation to a nonresident are normally subject to withholding tax at 20%. There are wide exemptions from this requirement, the most notable of which include payments:
- between "associated companies" under the EU Interest and Royalties Directive;
- by a company in the ordinary course of its trade or business to a company resident in an EU/treaty state (provided the payments do not relate to an Irish branch or agency of the lender), where that state imposes a tax that generally applies to interest receivable in that state by companies from sources outside that state;
- on quoted Eurobonds; or
- by an Irish "section 110 company" to a person resident in an EU/treaty state, other than where it relates to an Irish branch or agency.
3.4 Would relief for interest so paid be restricted by reference to "thin capitalisation" rules?
There are no "thin capitalisation" rules applicable in Ireland. It is nonetheless possible in certain limited cases that the interest may be reclassified as a distribution preventing such interest from being tax-deductible.
3.5 If so, is there a "safe harbour" by reference to which tax relief is assured?
Interest that would ordinarily be reclassified as a distribution may nevertheless be deductible for an Irish "section 110 company" if one of four safe harbours apply including where the recipient is resident and subject to tax in an EU/treaty state.
3.6 Would any such rules extend to debt advanced by a third party but guaranteed by a parent company?
This is not applicable.
3.7 Are there any other restrictions on tax relief for interest payments by a local company to a nonresident?
Interest is generally deductible if provided for as an expense in the statutory accounts of the company, and is incurred wholly and exclusively for the purposes of its trade.
Subject to meeting certain conditions, interest incurred in lending money to a trading or rental company or in acquiring shares in a trading or rental company or a holding company of such a company, should also be deductible.
Tax relief for interest is restricted where it is paid for acquiring shares in or lending to a connected company or for the purposes of acquiring a trade or business of that or another connected company (irrespective of the payee's country of residence).
The new EU Anti-Tax Avoidance Directive ("EU ATAD") contains certain restrictions on borrowing costs. Ireland has applied for a derogation for implementation of the restrictions until 2024 but it is unclear whether an agreement will be secured in relation to this derogation from the EU Commission.
3.8 Is there any withholding tax on property rental payments made to non-residents?
Withholding tax applies at a rate of 20% on rent paid directly to a non-resident landlord in respect of Irish situate property (payable to Irish Revenue by the tenant).
The appointment of an Irish tax-resident agent by the non-resident landlord to collect rental payments on his behalf excludes the application of withholding tax on the rent altogether.
3.9 Does your jurisdiction have transfer pricing rules?
Yes, Ireland has had transfer pricing rules since 2011 and these apply to arrangements entered into between associated companies where one of them carries on a trade. If an arrangement is not made at arm's length, an adjustment will be made to the trading profits to reflect an arm's length amount. The Irish tax legislation refers to the OECD Transfer Pricing Guidelines for the interpretation of the arm's length principle. There is an exemption for small and medium-sized enterprises.
4 Tax on Business Operations: General
4.1 What is the headline rate of tax on corporate profits?
Ireland has two rates of corporation tax, a 12.5% rate and a 25% rate.
The 12.5% rate applies to the trading profits of a company which carries on a trade in Ireland. There is no precise definition of what constitutes a trade for this purpose. As a general rule, it would require people on the ground in Ireland carrying out real economic activity on a regular or habitual basis, and normally with a view to realising a profit.
The corporation tax rate of 25% applies in respect of passive income, profits arising from a possession outside of Ireland (i.e. foreign trade carried on wholly outside of Ireland) and profits of certain trades such as dealing in or developing land and mineral exploration activities.
4.2 Is the tax base accounting profit subject to adjustments, or something else?
A company's profits for tax purposes will follow its accounts, provided that they are prepared in accordance with generally accepted accounting principles, subject to specific adjustments required by Irish tax legislation.
4.3 If the tax base is accounting profit subject to adjustments, what are the main adjustments?
Revenue expenses which are not incurred wholly and exclusively for the purposes of the trade are not deductible from the company's taxable profits.
While accounting-based depreciation of assets is not generally deductible, tax-based depreciation can be taken into account for "plant and machinery" and "industrial buildings" subject to meeting certain conditions.
It is possible to carry forward trading profits arising from the same trade and surrender losses from group companies to reduce taxable profits.
4.4 Are there any tax grouping rules? Do these allow for relief in your jurisdiction for losses of overseas subsidiaries?
Yes. Companies can be grouped for different tax purposes (but are not taxed on the basis of consolidated accounts). For loss relief and capital gains tax ("CGT") purposes, a group consists of a principal company and all its effective 75% subsidiaries.
An Irish company may be allowed relief for losses in an Irish subsidiary and for losses in an overseas subsidiary provided the loss is not available for use by the overseas subsidiary. Capital losses cannot be surrendered between members of a CGT group.
Capital assets may be transferred between group members on a no gain/no loss basis. This has the effect of postponing liability until the asset is transferred outside the group or until the company holding the asset is transferred outside the group.
Payments between members of a 51% group can be made without withholding.
Transfers between associated companies are exempt from stamp duty where certain conditions are met.
It is possible to apply for a VAT grouping of companies established in Ireland that are under common control. Transactions between these companies are disregarded for VAT purposes.
4.5 Do tax losses survive a change of ownership?
Tax losses may survive a change in ownership but there are rules denying the use of carry-forward losses in certain circumstances following such a change.
4.6 Is tax imposed at a different rate upon distributed, as opposed to retained, profits?
A surcharge of 20% applies in respect of "estate and investment" income retained by "close" companies. In general terms, close companies are ones which are controlled by five or fewer people. A surcharge of 15% will also be applicable in respect of retained professional income in cases of close "professional" service companies.
4.7 Are companies subject to any significant taxes not covered elsewhere in this chapter – e.g. tax on the occupation of property?
Other than "local" rates which may apply to the occupation of commercial property, no they are not.
5 Capital Gains
5.1 Is there a special set of rules for taxing capital gains and losses?
Yes, there is a separate set of rules for computing capital gains. Those rules are broadly as follows:
- costs of acquisition and disposal are deducted from disposal proceeds;
- enhancement expenditure is generally deductible where such expenditure is reflected in the value of the asset;
- the application of capital losses carried forward may reduce the amount of gain; and
- the purchase price and enhancement expenditure may be adjusted for inflation (indexation relief ).
The rate of tax imposed upon capital gains is currently 33% and therefore differs from the rate imposed on business profits (12.5% for trading income, 25% for investment income).
5.2 Is there a participation exemption for capital gains?
Where an Irish company disposes of shares in a company resident in Ireland or an EU/treaty state in which it has held at least 5% of the ordinary shares for more than 12 months, any gain should be exempt from CGT. The subsidiary must carry on a trade, or else the activities of the disposing company and all of its 5% subsidiaries taken together must amount to trading activities.
5.3 Is there any special relief for reinvestment?
No, there is no such relief.
5.4 Does your jurisdiction impose withholding tax on the proceeds of selling a direct or indirect interest in local assets/shares?
Where a company disposes of Irish real estate, or shares deriving more than 50% of their value from Irish real estate, for a consideration exceeding €500,000, or in the case of residential property exceeding €1 million, the purchaser is obliged to withhold 15% of the sales proceeds unless the purchaser obtains a CG50 clearance certificate from Irish Revenue. Such certificate will be issued where the vendor is resident in Ireland, the CGT has been paid or no CGT arises.
6 Local Branch or Subsidiary?
6.1 What taxes (e.g. capital duty) would be imposed upon the formation of a subsidiary?
No taxes would be imposed.
6.2 Is there a difference between the taxation of a local subsidiary and a local branch of a non-resident company (for example, a branch profits tax)?
Yes. An Irish-resident subsidiary would pay corporation tax on its worldwide income and gains, whereas a branch would be liable to corporation tax only on the items listed in question 6.3. The charge to Irish corporation tax only applies where the non-resident company is carrying on a trade in Ireland through the branch. A branch set up for investment purposes only, and not carrying on a trade, is not subject to Irish corporation tax, though certain Irish source income (mainly rent and interest) may be subject to income tax either through withholding or by way of income tax charge, subject to any available exemptions. A branch would not be subject to a branch profits tax.
6.3 How would the taxable profits of a local branch be determined in its jurisdiction?
A non-resident company carrying on a trade though an Irish branch is subject to Irish tax on the following items:
- the trading income arising directly or indirectly through or from the branch;
- income from property or rights used by or held by or for the branch; and
- such gains as, but for the corporation tax rules, would be chargeable to CGT in the case of a company not resident in Ireland.
The profits subject to tax may arise from within Ireland and from abroad.
6.4 Would a branch benefit from double tax relief in its jurisdiction?
Irish domestic legislation does not give treaty relief against Irish tax unless the person claiming credit is resident in Ireland for the accounting period in question. This means that the Irish branch of a non-resident company cannot claim treaty relief.
6.5 Would any withholding tax or other similar tax be imposed as the result of a remittance of profits by the branch?
No such tax would be imposed.
7 Overseas Profits
7.1 Does your jurisdiction tax profits earned in overseas branches?
Profits in overseas branches are, as a general rule, taxed in Ireland because an Irish resident company is subject to corporation tax on its worldwide profits. It is nonetheless generally possible to claim a tax credit for the foreign tax paid.
7.2 Is tax imposed on the receipt of dividends by a local company from a non-resident company?
Dividends received from a non-resident company are generally taxed at 25% but the lower rate of 12.5% applies in many cases including where dividends are paid out of the "trading profits" of a company resident in an EU/treaty state or in a country which is a signatory to the Convention on Mutual Administrative Assistance in Tax Matters. In any event, tax credits can be claimed, up to the Irish corporation tax due, for:
- withholding tax suffered on the dividend; and
- underlying tax suffered on the trading profits out of which the dividend was paid.
It is possible to pool and carry forward excess foreign tax credits and offset these against Irish corporation tax on other foreign dividends.
7.3 Does your jurisdiction have "controlled foreign company" rules and, if so, when do these apply?
Currently, Ireland has no controlled foreign company ("CFC") rules. However, following the formal adoption of the EU ATAD by the Economic and Financial Affairs Council of the European Union on 12 July 2016, Ireland will be required to introduce legislative provisions to give effect to the CFC rules contained in Article 7. EU Member States have a certain level of flexibility in choosing the form and method of achieving the results intended by the EU ATAD. For example, the preamble to the EU ATAD notes that rules can target a low taxed subsidiary, particular types of income or a targeted rule which taxes profits which have been artificially diverted to that subsidiary.
A corporation tax strategy paper published by the Irish Department of Finance on 1 August 2018 has provided a broad indication of Ireland's proposed approach. It suggested that the CFC provisions will focus on non-genuine arrangements which have been put in place for the essential purpose of obtaining a tax advantage and target CFC income that has been artificially diverted from Ireland. The deadline for implementation of the EU ATAD in Member States is 1 January 2019.
8 Taxation of Commercial Real Estate
8.1 Are non-residents taxed on the disposal of commercial real estate in your jurisdiction?
CGT arises on the disposal of commercial Irish real estate by nonresidents.
8.2 Does your jurisdiction impose tax on the transfer of an indirect interest in commercial real estate in your jurisdiction?
CGT arises on the disposal of shares or securities (other than shares or securities quoted on a stock exchange) deriving their value, or the greater part of their value, directly or indirectly from Irish commercial real estate.
8.3 Does your jurisdiction have a special tax regime for Real Estate Investment Trusts (REITs) or their equivalent?
Ireland introduced a REIT regime in 2013. A REIT is exempt from tax on income and chargeable gains of its property rental business, provided it meets certain conditions as to Irish residence, listing of shares (on an EU stock exchange), derives 75% of its assets and profits from its property rental business, and distributes 85% of its property income by dividend to shareholders in each accounting period. Income tax can apply where a dividend is paid to a shareholder who holds at least 10% of the share capital or voting rights in the REIT.
9 Anti-avoidance and Compliance
9.1 Does your jurisdiction have a general anti-avoidance or anti-abuse rule?
Ireland has a general anti-avoidance provision, section 811 of the Irish Taxes Consolidation Act 1997, the applicability of which was considered by the Irish Supreme Court in O'Flynn Construction Limited & Others v The Revenue Commissioners.
Section 811 applies where Irish Revenue forms an opinion that a transaction gives rise to a tax advantage for the taxpayer, was not undertaken for any other purpose but obtaining that advantage, and would be a misuse or abuse of any relief sought by the taxpayer. Article 6 of the EU ATAD also introduces a broad general antiavoidance provision. However, the existing Irish general antiavoidance provision in section 811 is regarded as being broader than that contained in Article 6 and accordingly it is considered that no further amendment to section 811 is envisaged at this time.
9.2 Is there a requirement to make special disclosure of avoidance schemes?
Yes, Ireland has a mandatory disclosure regime for tax avoidance transactions similar to the regime in the UK. Section 817D –section 817T of the Taxes Consolidation Act ("TCA") deal with the mandatory reporting of certain defined transactions.
The regime aims to enforce promoters, advisors, and on occasion the clients who implement tax avoidance schemes, to inform Revenue of the details of such schemes.
The promoter includes persons involved in designing, managing or marketing the transaction. The promoter is entitled to assert legal professional privilege when making the disclosure, subject to informing the taxpayer of its obligation to disclose the transaction directly to Revenue.
Failure to comply can result in penalties determined by the court in amounts ranging up to a maximum of €4,000 plus €500 per day for each day the scheme remains unnotified after the due date for notification.
9.3 Does your jurisdiction have rules which target not only taxpayers engaging in tax avoidance but also anyone who promotes, enables or facilitates the tax avoidance?
In addition to the Irish mandatory disclosure regime, in May 2018 the Council of the European Union adopted a directive introducing new EU mandatory disclosure rules. The rules are aimed at "crossborder tax arrangements". They therefore have a slightly different emphasis to the Irish rules. The directive targets intermediaries such as tax advisors, accountants and lawyers that design and/or promote tax planning schemes and will require them to report schemes that are potentially aggressive.
Ireland has until 31 December 2019 to transpose the directive into national law, but reporting must include transactions implemented from 25 June 2018.
9.4 Does your jurisdiction encourage "co-operative compliance" and, if so, does this provide procedural benefits only or result in a reduction of tax?
Yes, in January 2017 Irish Revenue relaunched its cooperative compliance framework ("CCF") for large cases division ("LCD") taxpayers.
The CCF is designed to promote open communication between Irish Revenue and larger taxpayers, reflecting the mutual interest in being certain about tax liabilities and ensuring there are no surprises in later reviews. It is entirely voluntary and does not result in a reduction of tax.
10 BEPS and Tax Competition
10.1 Has your jurisdiction introduced any legislation in response to the OECD's project targeting Base Erosion and Profit Shifting (BEPS)?
In response to certain themes emerging from the BEPS consultation, Ireland amended its corporate tax residence rules in order to phase out the so-called "double Irish" structure used by certain multinational groups.
It has also introduced country-by-country reporting and updated its transfer pricing legislation as recommended in the BEPS reports.
10.2 Does your jurisdiction intend to adopt any legislation to tackle BEPS which goes beyond what is recommended in the OECD's BEPS reports?
Ireland's objective is to adopt best international practice. Preceding BEPS, Ireland already operated certain anti-avoidance measures not existing in other OECD countries, such as a legislative general antiavoidance rule ("GAAR") and rules denying tax deductibility in Ireland in certain cases to payments which are not correspondingly taxed in an EU/DTT country.
10.3 Does your jurisdiction support public Country-by- Country Reporting (CBCR)?
Yes. Regulations implementing CBCR have applied since 2016 to groups with an Irish presence and turnover exceeding €750 million.
10.4 Does your jurisdiction maintain any preferential tax regimes such as a patent box?
Ireland has recently introduced a "knowledge development box" ("KDB") which provides for an effective 6.25% tax rate on income from IP and software that was improved, created or developed in Ireland.
Additionally, Ireland amended its legislation in relation to securitisation companies (section 110 TCA) in 2011 in advance of BEPS, to prevent certain possible cross-border "double nontaxation" results arising.
11 Taxing the Digital Economy
11.1 Has your jurisdiction taken any unilateral action to tax digital activities or to expand the tax base to capture digital presence?
No such unilateral action has been taken in Ireland.
11.2 Does your jurisdiction support the European Commission's interim proposal for a digital services tax?
The Irish Government has strongly opposed the European Commission's interim proposal for a digital tax with the Irish Minister for Finance emphasising the need for unanimity before any EU digital tax proposal can be agreed. Reference was made to the OECD reports on digital taxation, hinting at a need for broader international consensus on this issue, rather than EU-focused measures. Moreover, the Irish Government has also published a reasoned opinion on 16 May 2018, addressed to the President of the Council of the European Union, questioning the necessity of these measures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.