Finance Act, 1990
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Levy on investments in collective investment undertakings. |
109.—(1) In this section— | |
“accountable person”, in relation to an undertaking, means a person in whom is vested the legal ownership of the assets of the undertaking and also includes any unit holder and any management company, agent, intermediary, broker, or any other person who is engaged in the marketing of units to residents in the State or who is a party to a transaction involving the purchase of units in an undertaking by a unit holder; | ||
“the airport” has the same meaning as it has in the Customs-free Airport Act, 1947 ; | ||
“the Area” has the same meaning as it has for the purposes of section 39B (inserted by the Finance Act, 1987 ) of the Finance Act, 1980 ; | ||
“assessable amount”, in relation to an undertaking and in relation to the period from the 1st day of February, 1990, to the 30th day of June, 1990, and thereafter each quarter, means the amount or value of capital invested by or on behalf of unit holders in an undertaking in that period or quarter, without deduction for any commissions paid or other expenses incurred in relation to that investment, in consideration of the purchase by or on behalf of such unit holders of units in that undertaking but without regard to capital invested in consideration of the purchase by or on behalf of unit holders of excluded units; | ||
“Commissioners” means the Revenue Commissioners; | ||
“company” means any body incorporated in the State with limited liability or, if incorporated or otherwise formed under the law of any other jurisdiction, which corresponds under that law to a body so incorporated in the State; | ||
“declaration”, in relation to the purchase of units by persons who are not resident in the State, means a written declaration which— | ||
(a) is made in such form as may be prescribed or authorised by the Commissioners, | ||
(b) declares that at the time when the declaration is made the person who is beneficially entitled to the interest in relation to such units is not, or, as the case may be, all of the persons who are so entitled are not, resident in the State, | ||
(c) contains as respects the person, or, as the case may be, each of the persons, mentioned in paragraph (b)— | ||
(i) the name of the person, | ||
(ii) the address of his principal place of residence, and | ||
(iii) the name of the country in which he is resident at the time the declaration is made, | ||
and | ||
(d) contains such other information as the Commissioners may reasonably require for the purposes of this section; | ||
“distribution” has the same meaning as it has for the purposes of the Corporation Tax Acts; | ||
“excluded units” means— | ||
(a) units in which the persons who hold the beneficial interest are not resident, as provided for in the Income Tax Acts, in the State and in respect of which a declaration was made, at the time of purchase by those persons, to the person from whom such units were purchased; | ||
(b) units of an undertaking repurchased or redeemed from a unit holder by a management company at the request of that unit holder; | ||
(c) units in an undertaking purchased by or on behalf of a unit holder from undistributed profits or income arising from units already held by that unit holder in that undertaking; | ||
(d) units purchased by or on behalf of a body of persons established for charitable purposes only or by the trustees of a trust so established acting on behalf of that trust and where that body or that trust is a charity for the purposes of the Income Tax Acts; | ||
(e) units purchased by or on behalf of an insurer acting in the course of his business as an insurer; | ||
(f) units in an undertaking purchased by or on behalf of a unit holder in exchange for units held by him in another undertaking provided that both such undertakings are sub-funds in an umbrella fund; | ||
(g) units purchased by or on behalf of an occupational pension scheme; | ||
(h) units purchased by or on behalf of a person acting in the course of his business in the airport or in the Area; | ||
(i) units purchased by or on behalf of an undertaking, being an undertaking to which this section applies; | ||
“insurer” means the holder of an authorisation under the European Communities (Non-Life Insurance) Regulations, 1976 ( S.I. No. 115 of 1976 ), or the European Communities (Life Assurance) Regulations, 1984 ( S.I. No. 57 of 1984 ); | ||
“intermediary” means any person who provides relevant facilities in relation to an undertaking; | ||
“management company”, in relation to an undertaking, means a company which, in the course of trading operations carried on by the company, manages the whole or any part of the investments and other activities of the business of the undertaking; | ||
“occupational pension scheme” means any scheme or arrangement— | ||
(a) which is comprised in one or more instruments or agreements, and | ||
(b) which provides or is capable of providing benefits in relation to employees in any description of employment who reside within the State, and | ||
(c) (i) which has been approved of by the Revenue Commissioners for the purpose of Chapter II of the Finance Act, 1972 , or | ||
(ii) the application for approval of which under Chapter II of the Finance Act, 1972 , is being considered, or | ||
(iii) being a statutory scheme to which section 17 of the Finance Act, 1972 , applies; | ||
“quarter” means a period of three months after the passing of this Act ending on the 31st day of March, the 30th day of June (other than the 30th day of June, 1990), the 30th day of September and the 31st day of December; | ||
“relevant facilities”, in relation to an undertaking, means— | ||
(a) the marketing in the State of the units of the undertaking, | ||
(b) the acting in the State as an intermediary in the purchase of the units of the undertaking by or on behalf of persons resident in the State or in the sale to such persons of such units, and | ||
(c) the provision in the State on behalf of the undertaking of facilities for the making of payments to holders of its units, or the repurchase or redemption of its units; | ||
“relevant gains”, in relation to an undertaking, means gains accruing to the undertaking being gains which would constitute chargeable gains in the hands of a person resident in the State; | ||
“relevant income”, in relation to an undertaking, means any amounts of income, profits or gains which arise to or are receivable by the undertaking being amounts of income, profits or gains— | ||
(a) which are or are to be paid to unit holders as relevant payments, or | ||
(b) out of which relevant payments are, or are to be, made to unit holders, or | ||
(c) which are or are to be accumulated for the benefit of, or invested in any property for the benefit of, unit holders, | ||
and which if they arose to an individual resident in the State would, in the hands of the individual, constitute income for the purposes of income tax; | ||
“relevant payment” means, a payment made to a unit holder by an undertaking by reason of rights conferred on the unit holder as a result of holding a unit or units in the undertaking, other than a payment made in respect of the cancellation, redemption or repurchase of a unit; | ||
“relevant profits” means, in relation to an undertaking, the relevant income and relevant gains of the undertaking; | ||
“umbrella fund” means an undertaking which is divided into a number of sub-funds and in which unit holders are entitled to exchange rights in one sub-fund for rights in another sub-fund; | ||
“undertaking” means an undertaking the main objects of which include the collective investment, in any property, of capital raised from the public and the units of which may, at the request of the unit holders, be repurchased or redeemed, directly or indirectly out of the assets of the undertaking, and includes a unit trust, UCITS or other similar investment undertaking which, in the case of a similar investment undertaking is, in the opinion of the Commissioners, an undertaking to which this section applies notwithstanding that such undertaking is a company which issues shares to the public, whether or not those shares may be repurchased or redeemed directly or indirectly out of the assets of the undertaking; | ||
“units” includes shares and any other instruments granting an entitlement to share in the investments or income of, or receive a distribution from, an undertaking; | ||
“UCITS” has the meaning assigned to it by section 19 of the Finance Act, 1989 ; | ||
“unit holder”, in relation to an undertaking, means any person who by reason of the holding of a unit, or under the terms of a unit, in the undertaking is entitled to a share of any of the investments or relevant profits of, or to receive a distribution from, the undertaking; | ||
“unit trust” means a registered unit trust scheme within the meaning of the Unit Trusts Act, 1972 ; | ||
(2) An accountable person shall deliver to the Commissioners a statement in writing showing the assessable amount for that accountable person— | ||
(a) in respect of the period from the 1st day of February, 1990, to the 30th day of June, 1990, within 30 days from the 30th day of June, 1990, and | ||
(b) in respect of each quarter, within 30 days from the end of each such quarter: | ||
Provided that where it is expedient to do so and the Commissioners have agreed, a person, who is an accountable person in relation to an undertaking, may deliver a statement as required under the foregoing provisions of this subsection and make a payment as required under subsection (4) on behalf of one or more other persons, who are also accountable persons in respect of that undertaking, and any such delivery or payment on behalf of one or more accountable persons shall be deemed to be a delivery and a payment by each of them for the purposes of this section. | ||
(3) There shall be charged on every statement delivered in pursuance of subsection (2) a stamp duty of an amount equal to three per cent. of the assessable amount shown therein. | ||
(4) The duty charged by subsection (3) upon a statement delivered by an accountable person pursuant to subsection (2) shall be paid by the accountable person upon delivery of the statement. | ||
(5) In the case of failure by the accountable person to deliver any statement required by subsection (2) within the time specified in that subsection or of failure by the accountable person to pay any duty chargeable on any such statement on the delivery thereof that person shall be liable to pay, in addition to the duty, interest thereon at the rate of 1.25 per cent. for each month or part of a month from the expiration of the quarter to which the statement relates until the day on which the duty is paid and such interest shall be recoverable in the same manner as if it were part of the duty payable. | ||
(6) There shall be furnished to the Commissioners, by an accountable person, such particulars as the Commissioners may deem necessary in relation to any statement required by this section to be delivered by the accountable person. | ||
(7) Notwithstanding the provisions of subsection (6) an accountable person shall, if required to do so by notice from the Commissioners, prepare and deliver to the Commissioners within such time, being not less than 30 days, as shall be specified in the notice a return of— | ||
(a) the names and addresses of all persons resident in the State in respect of whom the accountable person has, in the course of providing relevant facilities in relation to an undertaking during such periods as shall be specified in the notice— | ||
(i) acted as an accountable person in the purchase by or on behalf of any of those persons of units in the undertaking or in the sale to such persons of such units, | ||
(ii) provided facilities for the making of payments by the undertaking to any of those persons who hold units of the undertaking, and | ||
(iii) provided facilities for the repurchase or redemption of units of the undertaking held by any of those persons, | ||
and | ||
(b) where appropriate, in respect of each such person— | ||
(i) the name and address of each undertaking— | ||
(I) the units of which have been so purchased by, or on behalf of, or sold to that person in that period, | ||
(II) on whose behalf facilities have been provided for the making of payments by the undertaking to that person in that period, and | ||
(III) on whose behalf facilities have been provided for the repurchase or redemption by the undertaking in the period of units in the undertaking held by that person, | ||
and | ||
(ii) (I) the value or total value of the units so purchased by, or on behalf of, or sold to that person, | ||
(II) the amount of the payments so made by the undertaking to that person, and | ||
(III) the value or total value of the units held by that person which were so repurchased or redeemed by the undertaking, | ||
and in respect of such return, the Commissioners shall be entitled to require production of and inspect any books or records of the accountable person relating to such purchase of units or provision of facilities. | ||
(8) A person shall, if he is required by notice in writing by the Commissioners to do so, deliver to the Commissioners, within such time, not being less than 30 days, as may be specified in the notice, particulars relating to the sale or purchase of units in an undertaking by that person and shall if so required by the Commissioners deliver to them a statement verifying such particulars, together with such evidence, statements and documents as the Commissioners may require in relation to such sale or purchase. | ||
(9) In the case of default by an accountable person in delivering any statement required by subsection (2) or in paying any duty pursuant to subsection (4), where such default leads to either or both— | ||
(a) an incomplete or inaccurate statement, and | ||
(b) an inadequate payment of duty, | ||
he shall be liable to a penalty of £2,000 or 25 per cent. of the total duty which, but for his default, would have been payable, whichever is the greater. | ||
(10) The duty charged under subsection (3) and any interest charged under subsection (5) shall be recoverable from any one or more of— | ||
(a) the accountable persons concerned, | ||
(b) where any accountable person concerned is dead, his personal representatives, and | ||
(c) any receiver, liquidator or administrator appointed to oversee the affairs of the accountable person concerned. | ||
(11) An accountable person, on whom the Commissioners have served a notice in writing of the requirement to deliver a statement under subsection (2) or of the duty payable under subsection (3) together with any interest payable under subsection (5), shall, upon failure to deliver such statement or pay such duty if any and interest as is set forth in such notice within 30 days of the date of issue of such notice, be liable to the following penalties— | ||
(a) where such notice has been served on an accountable person in respect of units held by him as a unit holder, £2,000 or 25 per cent. of the duty together with any interest payable, whichever is the greater, and £100 for each day on which the failure so continues, | ||
(b) where such notice has been served on any other accountable person £20,000 or 25 per cent. of the duty together with any interest payable, whichever is the greater, and £500 for each day on which the failure so continues, | ||
and for the purposes of this subsection the Commissioners may estimate the amount of duty payable from any information available to them. | ||
(12) The Commissioners shall set up and maintain a register of persons other than unit holders who are, or who may become, accountable persons and shall provide facilities for the inspection of this register by the public at such times and on such conditions as appear reasonable to the Commissioners. | ||
(13) Every person who on the date of the passing of this Act is an accountable person, other than a person who is an accountable person solely on the grounds that he is a unit holder, shall (for the purpose of registering as such), within the period of 60 days after the passing of this Act, furnish in writing to the Commissioners a statement setting out such particulars as the Commissioners may require in relation to the setting up and maintenance of the register provided for in subsection (12). | ||
(14) Every person who after the date of the passing of this Act becomes an accountable person or intends to become an accountable person, other than a person who becomes or intends to become an accountable person solely on the grounds that he is or is to be a unit holder, shall (for the purpose of registering as such) furnish, not less than fourteen days prior to the participation of that accountable person in the provision of relevant facilities, the statement referred to in subsection (13) to the Commissioners. | ||
(15) Any accountable person who fails to comply with the provisions of subsection (13) or subsection (14) shall be liable to a penalty of £20,000 and to a further penalty of £100 for each day on which the failure so continues. | ||
(16) Any unit holder who purchases units in an undertaking, including units in the form of a stock certificate to bearer, from or through persons who are not registered under the provisions of subsection (12) shall be liable to a penalty of £2,000 or a sum equal to 25 per cent. of the capital invested by the unit holder in acquiring such units, whichever is the greater, and any such penalty shall be recoverable in the same manner as if it were part of the duty payable: | ||
Provided that any unit holder to whom this subsection applies may, within 30 days of acquiring such units, deliver such statement as is referred to in subsection (2) and pay such duty as is referred to in subsection (3). | ||
(17) (a) The Commissioners shall make such regulations as appear to them to be necessary for the purpose of giving effect to this section or of enabling them to discharge their functions thereunder. | ||
(b) Every regulation made under this subsection shall be laid before Dáil Éireann as soon as may be possible after it is made and, if a resolution annulling the regulation is passed by Dáil Éireann within the next 21 days on which Dáil Éireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. |