As reported in our briefing in November 2021, Irish Revenue confirmed their intention to withdraw an important concession which is relevant to directors' physical attendance at board meetings and company residence for Irish tax purposes.
The concession allowed directors to participate in meetings remotely, which they otherwise would have attended in person absent COVID-19 related travel restrictions, without affecting the analysis of the company's tax residence for Irish tax purposes.
Irish Revenue initially stated their intention to withdraw the concession from 31 December 2021 but on 23 December 2021 they confirmed that this treatment remains valid until 31 January 2022 and that the position will be kept under review to determine whether any further extension is required. The requirement that the individual and the company must maintain a record of the facts and circumstances of the bona fide relevant presence in, or outside, the State continues to apply. This record must be given to Revenue, if requested, as evidence that the presence resulted from COVID-19 related travel restrictions.
Of course, we welcome this decision by Irish Revenue in the context of the current wave of COVID-19 and recognise Irish Revenue's responsiveness to a changing environment. We consider that, in order for companies to be able to plan their operations, a longer extension is required. Also, Irish Revenue should consider updating the concession (rather than withdrawing it) to confirm that remote attendance at board meetings will not affect company residence for Irish tax purposes where this arises due to COVID-19 related medical advice to the individual or public health guidelines such as advice not to travel or work from home policies in any relevant jurisdiction. This would ensure that the concession is flexible in adapting to the prevailing circumstances at any given time.
What happens next?
In the meantime, all companies which may be affected by this issue should consider their plans for board meetings in 2022, taking account of the possible withdrawal of this concession from 31 January 2022 and should take advice, as appropriate to ensure that an unintended change of tax residence and potential tax costs do not arise as a result.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.