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Disposal of certain assets.
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34.—(1) As respects any payment, after the passing of this Act, of consideration for acquiring an asset to which paragraph 11 of Schedule 4 to the Principal Act applies, that Schedule is hereby amended by the substitution for that paragraph of the following paragraph:
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“Disposal of certain assets
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11.—(1) This paragraph shall apply to assets that are—
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(a) land in the State;
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(b) minerals in the State or any rights, interests or other assets in relation to mining or minerals or the searching for minerals;
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(c) exploration or exploitation rights in a designated area;
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(d) shares in a company deriving their value or the greater part of their value directly or indirectly from assets specified in clause (a), (b) or (c) other than shares quoted on a stock exchange; and
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(e) goodwill of a trade carried on in the State.
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(2) Upon payment of the consideration for acquiring an asset to which this paragraph applies, the person by or through whom any such payment is made shall deduct there out a sum representing an amount of capital gains tax equal to 15 per cent. of the said payment and the person to whom the payment is made shall allow such deduction upon receipt of the residue of the payment and the person making the deduction shall, on proof of payment to the Revenue Commissioners of the amount so deducted, be acquitted and discharged of so much money as is represented by the deduction as if that sum had been actually paid to the person making the disposal:
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Provided that where the person disposing of the asset produces to the person acquiring the asset a certificate issued under subparagraph (6) in relation to the disposal, no such deduction shall be made.
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(3) Where any such payment as aforesaid is made by or on behalf of any person, that person shall forthwith deliver to the Revenue Commissioners an account of the payment, and of the amount deducted therefrom, and the inspector shall, notwithstanding any other provision of the Capital Gains Tax Acts, assess and charge that person to capital gains tax for the year of assessment in which the payment was made on the amount of the payment at the rate of 15 per cent.
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(4) The inspector may, where, in relation to any such payment as aforesaid, any person has made default in delivering an account required by this paragraph, or where he is not satisfied with the account, estimate the amount of the payment to the best of his judgment and, notwithstanding section 5 (1), assess and charge that person to capital gains tax for the year of assessment in which the payment was made on the amount so estimated at the rate of 15 per cent.
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(5) Where the amount of capital gains tax assessed and charged under subparagraph (3) or (4) is paid, appropriate relief shall, on a claim being made in that behalf, be given to the person chargeable in respect of the gain on the disposal, whether by discharge or repayment or otherwise.
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(6) A person chargeable to capital gains tax on the disposal of an asset to which this paragraph applies may apply to the inspector for a certificate that tax should not be deducted from the consideration for the disposal of the asset and that the person acquiring the asset should not be required to give notice to the Revenue Commissioners in accordance with subparagraph (7) (a), and, if the inspector is satisfied that the person making the application is the person making the disposal and that—
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(a) he is ordinarily resident in the State, or
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(b) no amount of capital gains tax is payable in respect of the disposal, or
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(c) the capital gains tax chargeable for the year of assessment for which he is chargeable in respect of the disposal of the asset and the tax chargeable on any gain accruing in any earlier year of assessment (not being a year ending earlier than the 6th day of April, 1974) on a previous disposal of the asset has been paid,
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the inspector shall issue the certificate to the person making the application and shall issue a copy of the certificate to the person acquiring the asset.
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(7) (a) Where—
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(i) after the passing of the Finance Act, 1982, a person acquires an asset to which this paragraph applies, and
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(ii) the consideration for acquiring the asset is of such a kind that the deduction mentioned in subparagraph (2) cannot be made thereout, and
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(iii) the person disposing of the asset does not, within two months after the time at which the acquisition is made, produce to him a certificate under subpararaph (6) in relation to the disposal,
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the person acquiring the asset shall give notice to the Revenue Commissioners of the acquisition not later than three months after the time at which the acquisition is made (or within such longer period as the Revenue Commissioners may, by notice in writing, allow) and the notice to be so given by that person to the Revenue Commissioners shall contain particulars of—
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(I) the asset acquired,
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(II) the consideration for acquiring the asset,
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(III) the market value of the asset, estimated to the best of that person's knowledge and belief, and
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(IV) the name and address of the person making the disposal,
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and the Revenue Commissioners shall acknowledge receipt of that notice.
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(b) Where—
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(i) a person acquiring an asset, who is required to give notice under clause (a) and to whom the person disposing of the asset does not produce a certificate under subparagraph (6), does not comply with the requirement to give that notice, and
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(ii) a chargeable gain accrues on the disposal of the asset, and
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(iii) an amount of capital gains tax assessed in respect of that disposal is not paid within twelve months from the date when the tax becomes payable, and
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(iv) the asset is not an asset to which paragraph 18 applies,
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the person so acquiring the asset may, by an assessment made not later than two years from the date when the tax became payable, be assessed and charged (in the name of the person disposing of the asset to him) to capital gains tax on an amount not exceeding the amount of the chargeable gain so accruing, and not exceeding such an amount of chargeable gains as would, if charged at the rate provided in section 3 (3), result in liability to an amount of capital gains tax equal to the said amount of capital gains tax which was not paid.
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(c) A person paying any amount of tax in pursuance of clause (b) shall be entitled to recover a sum of that amount from the person disposing of that asset to him as a simple contract debt in any court of competent jurisdiction.
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(d) This subparagraph shall apply in relation to the acquisition of an asset by two or more persons with any necessary modifications and subject to the proviso that each such person shall be liable to be assessed and charged in respect only of such part of the amount of capital gains tax payable by those persons by virtue of clause (b) as bears to the whole of such tax the same proportion as the part of the asset acquired by that person bears to the whole of the asset.
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(8) This paragraph shall not apply where the consideration on a disposal does not exceed the sum of fifty thousand pounds:
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Provided that if an asset owned at one time by one person, being an asset to which this paragraph would, but for this subparagraph, apply, is disposed of by that person in parts—
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(a) to the same person, or
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(b) to persons who are acting in concert or who are, in the terms of section 33, connected persons,
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whether on the same or different occasions, the several disposals shall for the purposes of this subparagraph, but not for any other purpose, be treated as a single disposal.
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(9) Notwithstanding subsections (2) and (3) of section 5, where an amount of capital gains tax is assessed and charged pursuant to this paragraph, such amount shall be due and payable on the day next after the day on which the assessment is made.
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(10) In this paragraph ‘exploration or exploitation rights’, ‘designated area’ and ‘shares’ have the same meanings as in section 4 (8).
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(11) This paragraph shall apply only in relation to disposals and acquisitions occurring on or after the 5th day of August, 1975.”.
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(2) The said paragraph 11 (other than subparagraph (7)), as inserted by subsection (1), shall apply, with the modifications specified in subsection (3), to any consideration paid on or after the 26th day of March, 1982, but before the passing of this Act, being consideration for a disposal to which the provisions of the Financial Resolution in relation to capital gains tax passed by Dáil Éireann on the 25th day of March, 1982, apply.
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(3) The modifications mentioned in subsection (2) are as follows:
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(a) Where, by virtue of any obligation imposed by the Financial Resolution mentioned in that subsection, a sum representing an amount of capital gains tax fell to be deducted under subparagraph (2) of the said paragraph 11 by the person by or through whom a payment of consideration was made, the inspector may, notwithstanding any other provision of the Capital Gains Tax Acts, assess and charge that person, for the year of assessment in which the amount of consideration was paid, to capital gains tax—
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(i) of an amount equal to the amount deducted, in a case where a sum representing an amount of capital gains tax was so deducted, and
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(ii) in any other case, of an amount equal to 15 per cent. of the consideration.
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(b) Where relief falls to be given under subparagraph (5) of the said paragraph 11 in respect of an amount of capital gains tax which was assessed and charged under subparagraph (3) or (4) of that paragraph, or under the preceding provisions of this subsection, and which was paid, that relief shall be given—
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(i) by repayment, where no amount of capital gains tax is payable in respect of the gain on the disposal, or
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(ii) where an amount of capital gains tax is payable in respect of the gain on the disposal—
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(I) by repayment of any amount by which the amount so assessed, charged and paid exceeds the amount of capital gains tax payable in respect of that gain, or
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(II) in any other case, by set-off against the amount of capital gains tax payable in respect of that gain.
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(c) Where, by virtue of such an obligation as is mentioned in paragraph (a) of this subsection, an amount of capital gains tax was paid as a condition for the issue of a certificate under subparagraph (6) of the said paragraph 11, paragraph (b) of this subsection shall, with any necessary modifications, have effect to give relief for that payment as it has effect to give relief for the amount of capital gains tax first mentioned therein.
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