Finance (No.2) Act 2023

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Implementation of Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation in relation to joint audits

88. Part 38 of the Principal Act is amended by the insertion of the following section after section 891K:

“891L. (1) In this section—

‘authorised officer’ means an authorised officer within the meaning of section 905;

‘competent authority’ means the authority designated as such by a Member State for the purposes of the Directive and, in relation to the State, means the Revenue Commissioners;

‘Directive’ means Council Directive 2011/16/EU of 15 February 2011²¹ as amended by Council Directive 2014/107/EU of 9 December 2014²² , Council Directive (EU) 2015/2376 of 8 December 2015²³ , Council Directive (EU) 2016/881 of 25 May 2016²⁴ , Council Directive (EU) 2016/2258 of 6 December 2016²⁵ , Council Directive (EU) 2018/822 of 25 May 2018²⁶ , Council Directive (EU) 2020/876 of 24 June 2020²⁷ and Council Directive (EU) 2021/514 of 22 March 2021²⁸ ;

‘foreign tax official’ means an official of a requesting authority who is—

(a) authorised by the requesting authority to exercise the power specified in paragraph (3)(a) of Article 12a of the Directive to interview individuals and examine records on behalf of the Member State concerned, or

(b) authorised by the requesting authority under the Directive to assist or represent the official referred to in paragraph (a) in the performance of his or her functions;

‘joint audit’ means an administrative enquiry—

(a) jointly conducted by the Revenue Commissioners and the competent authority of another Member State, and

(b) linked to one or more persons of common or complementary interest to the Revenue Commissioners and that competent authority;

‘nominated officer’ means a foreign tax official authorised by the Revenue Commissioners under subsection (5) to be a nominated officer;

‘records’ has the same meaning as it has in section 905;

‘Revenue officer’ means an officer of the Revenue Commissioners.

(2) A requesting authority may request the Revenue Commissioners to conduct a joint audit.

(3) The Revenue Commissioners shall respond to a request under subsection (2) within 60 days of the date of receipt of that request.

(4) Where a joint audit is requested under subsection (2), the Revenue Commissioners may reject such a request where there are justified grounds for doing so.

(5) The Revenue Commissioners may, by authorisation issued in writing (in this section referred to as a ‘written authorisation’), authorise a foreign tax official to be a nominated officer in respect of a joint audit and to perform any of the functions conferred on a nominated officer under this section for the purposes of the joint audit.

(6) A written authorisation shall contain—

(a) the name of the foreign tax official,

(b) a statement to the effect that the foreign tax official is—

(i) a tax official of a specified requesting authority, and

(ii) a nominated officer,

(c) a photograph and signature of the foreign tax official,

(d) particulars of the authorisation under this section of the foreign tax official,

(e) the duration of the written authorisation,

(f) the name of the person who is the subject of the joint audit concerned,

(g) a hologram showing the logo of the Office of the Revenue Commissioners, and

(h) the facsimile signature of a Revenue Commissioner.

(7) Where a request for a joint audit under subsection (2) is accepted by the Revenue Commissioners, the joint audit shall be conducted in a pre-agreed and coordinated manner, including linguistic arrangements, by the Revenue Commissioners and the competent authority of the requesting State, in accordance with this Act, any other law of the State and any procedural requirements applicable to such an audit in the State.

(8) The Revenue Commissioners shall, for the purposes of a joint audit, appoint an authorised officer to be responsible for supervising and co-ordinating the joint audit in the State.

(9) Subject to subsections (10), (11) and (12), a nominated officer may—

(a) accompany an authorised officer during a joint audit, and

(b) for the purposes of conducting the joint audit—

(i) interview individuals, and

(ii) examine records.

(10) A nominated officer shall not perform any function under this section that would exceed the scope of the functions granted to the nominated officer under the laws of the requesting authority.

(11) Nothing in this section shall be construed as requiring any person to disclose to a nominated officer—

(a) information with respect to which a claim to legal professional privilege could be maintained in legal proceedings,

(b) information of a confidential medical nature, or

(c) professional advice of a confidential nature given to a client (other than advice given as part of a dishonest, fraudulent or criminal purpose).

(12) A nominated officer shall not, without the consent of the occupier, enter any premises, or that portion of any premises, which is occupied wholly and exclusively as a private residence, except on production by an authorised officer of a warrant issued under subsection (2A) of section 905 in which the nominated officer is named pursuant to paragraph (c) of that subsection.

(13) A person who does not comply with any requirement of a nominated officer in the performance of the nominated officer’s functions under this section shall be liable to a penalty of €4,000.

(14) A nominated officer when performing his or her functions under this section shall on request produce—

(a) his or her written authorisation, and

(b) his or her authorisation from the requesting authority stating his or her identity and official capacity.

(15) Where, in the performance of any functions under this section, a nominated officer is requested to produce or show his or her authorisation for the purposes of this section, the production by the nominated officer of his or her written authorisation—

(a) shall be taken as evidence of authorisation under this section, and

(b) shall satisfy an obligation under this section which requires the nominated officer to produce such authorisation on request.

(16) A written authorisation shall be valid for the duration specified in the authorisation, and in any event, for no longer than the duration of the joint audit in respect of which it is issued, and may at any time be withdrawn by the Revenue Commissioners.

(17) The Revenue Commissioners and the competent authority of the requesting state shall, in relation to a joint audit, endeavour to agree—

(a) the facts and circumstances relevant to the joint audit, and

(b) the tax position of the person the subject of the joint audit, based on the results of the joint audit.

(18) (a) The authorised officer responsible for a joint audit and such nominated officer as may be authorised in respect of the joint audit, shall, at the conclusion of the joint audit, prepare a final report detailing the findings of the joint audit, including issues on which the authorised officer and the nominated officer agree.

(b) The person the subject of a joint audit shall be informed of the outcome of the joint audit and provided with a copy of the final report in respect of the joint audit within 60 days of the issuance of the final report.

(19) In determining the actions, if any, to be taken following the conclusion of a joint audit, the Revenue Commissioners shall take into account the issues on which agreement has been reached as part of the joint audit.

(20) A person subject to a joint audit shall have the same rights and obligations as in the case of an enquiry carried out by Revenue officers only, including in the course of any process of complaint, review or appeal relating to the joint audit.

(21) The Revenue Commissioners may delegate to any of their officers any of the functions to be performed by the Revenue Commissioners under this section as the competent authority of the State.

(22) A word or expression which is used in this section and which is also used in the Directive has, unless the context otherwise requires, the same meaning in this section as it has in the Directive.

(23) (a) Section 851A shall apply to a nominated officer, or a person who was formerly a nominated officer, as it applies to an authorised officer, subject to the modification that references to a ‘Revenue officer’ in—

(i) the definition, in subsection (1) of that section, of ‘taxpayer information’,

(ii) subsections (2), (3) and (4) of that section,

(iii) subsection (8) of that section, insofar as it applies to paragraphs (b), (c), (d) and (i) of that subsection, and

(iv) subject to paragraph (b), subsection (9) of that section,

shall be construed as including a reference to a nominated officer (within the meaning of this section) and a person who was formerly a nominated officer (within the said meaning).

(b) Paragraph (a)(iv) shall not operate to permit the due disclosure in the course of duties of taxpayer information (within the meaning of section 851A) by a service provider (within the said meaning) to a nominated officer or a person who was formerly a nominated officer.

(24) This section shall apply in respect of periods (within the meaning of section 1077F) beginning on or after 1 January 2024.”.

²¹ OJ No. L64, 11.3.2011, p.1

²² OJ No. L359, 16.12.2014, p.1

²³ OJ No. L332, 18.12.2015, p.1

²⁴ OJ No. L146, 3.6.2016, p.8

²⁵ OJ No. L342, 16.12.2016, p.1

²⁶ OJ No. L139, 5.6.2018, p.1

²⁷ OJ No. L204, 26.6.2020, p.46

²⁸ OJ No. L104, 25.3.2021, p.1