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IRELAND – AN IDEAL LOCATION FOR INTELLECTUAL PROPERTY TRADING COMPANIES

INTRODUCTION

Apart from a highly skilled, English speaking workforce; membership of the E.U.; an excellent standard of living for employees seconded to Ireland; a large network of international routes and a successful track record of investment, research and development from U.S. corporations there are many advantages to setting up Intellectual Property Trading companies in Ireland. 

 The main focus of this article is the tax advantages which can be summarised under the following headings:

  1. Corporation Tax
  2. Capital Allowances
  3. Research & Development Relief
  4. Withholding Tax
  5. Stamp Duty

 

1. CORPORATION TAX

Ireland has one of the lowest corporation tax rates on trading income in the world.  The standard rate is 12½% on trading profits.

 A 25% rate is charged on non-trading and foreign source income.  It is the rate applied to “passive income.” 

 To be eligible for the 12½% Corporation Tax rate the following criteria must apply:

  1. The company must be a trading company.
  2. The trade must be carried on in Ireland.
  3. The trading activity must be controlled in Ireland.
  4. The profit making apparatus must be located in Ireland.

 

Does your company qualify for the 12½% rate?

If your company is an Intellectual Property Trading Company established in Ireland with a workforce of individuals specialised in:

  • Managing the intellectual property portfolio
  • Developing and exploiting Intellectual property
  • Promoting and licensing intellectual property rights for use by third parties

your company should be eligible for the 12½% rate of Corporation Tax.  If, however, there is any doubt, it is possible to obtain an advanced decision from the Irish Revenue Commissioners.  If the company does not qualify as a trading company, the 25% corporation tax rate will apply.

Other factors to be considered in the context of eligibility for the 12½% tax rate for IP companies include:

  • Strategic and operational exploitation and management of the Intellectual Property in Ireland.
  • The Irish company should incur marketing, legal and Research & Development expenditure in relation to the IP.
  •  The Irish company should be responsible for the development and protection of the IP.

 

A point to keep in mind:

An Irish resident investment company which is in receipt of certain trading dividends can make an election for those dividends to be taxable at the 12½% rate.

 

2. CAPITAL ALLOWANCES

 Capital Allowances are available for capital expenditure on the creation, acquisition and/or licence to use certain “specified intangible assets” which includes:

  1. Copyrights
  2. Patents and registered designs
  3. Trademarks, brands, domain names and service marks
  4. Computer software
  5. Know How (related to commercial, industrial or scientific experience)
  6. Goodwill to the extent that it is referable to the “specified intangible asset.”
  7. Plant Breeder’s Rights
  8. Secret Processes or Formulae
  9. Applications or grant or registration of copyrights, patents, trademarks, etc.

 Qualifying capital expenditure can be written off against 80% of the income generated from the “relevant trade” (income from developing, exploiting or managing the Intellectual Property) in either of two ways:

  1. In line with the amount charged to the company’s profit & loss account  for the accounting period in respect of depreciation or amortisation or
  2. Over a 15 year period.  A rate of 7% will apply for years 1 to 14 and a rate of 2% will apply for year 15.

 

A point to keep in mind:

 A clawback of capital allowances claimed will arise if the IP is sold within ten years of its acquisition.  In other words no balancing allowance or charge event will arise if the intangible asset is sold ten years after the date of acquisition provided the intangible asset is not acquired by a connected company which is entitled to a tax deduction under this section.

 

 3. RESEARCH & DEVELOPMENT RELIEF

 Background

 The 2012 Finance Act introduced a new tax relief which allowed a company to surrender a portion of its R&D tax credit to key employees engaged in research and development activities.

 This relief reduced the employee’s Income Tax (but not Universal Social Charge) on relevant emoluments providing the employee’s effective income tax rate didn’t fall below 23% in any tax year.

 To be eligible for this relief:

a)      The key employee must have performed 75% or more of the duties of his/her employment in “the conception or creation of new knowledge, products, processes, methods and systems.”

b)      In addition 75% of the employee’s emoluments with the employer in question must qualify as expenditure on R&D within the provisions of Section 766 TCA 1997.

 

2013 Finance Act

The 75% thresholds were reduced to 50%.

This applies to accounting periods commencing on or after 1st January 2013.

The Finance Act 2013 increased the amount of qualifying R&D expenditure that can be ignored when referencing current year expenditure to base year expenditure from €100,000 to €200,000.

This means that the first €200,000 of qualifying expenditure is effectively on a volume base.  Any qualifying amount in excess of this €200,000 is compared to the 2003 threshold amount and the R&D credit will be calculated on this portion of qualifying expenditure in the normal manner.

 

How does this relief work?

The R&D Tax Credit is available to:

  • offset the current year corporation tax liability of the company (the aggregate amount to be surrendered cannot exceed the corporation tax for the accounting period).
  • to reward key employees who have been involved in the development of the R&D i.e. a “relevant employer” can surrender the benefits of the R&D credits to the employee who will then be entitled to have his/her income reduced by the amount of the tax credits surrendered in the tax year following the tax year in which the accounting period of the employer ends.
  • Excess credits can be (a) carried forward indefinitely, (b) carried back to previous year, (c) surrendered within the group or (d) reclaimed from Revenue over a three year period, provided certain conditions are met.

In addition to the above relief, there is also a tax credit for capital expenditure on buildings or structures used for the purposes of R&D activities.

 The tax credit is 25% of the cost of construction or refurbishment of a building or structure used to facilitate the R&D activity.  This is available on a proportional basis if at least 35% of the building is being used for the purposes of R&D.

 

Two points to remember:

  1. The full R&D credit can be claimed in the year in which the expenditure was incurred.
  2. There is a ten year claw back in situations where the building is (a) sold, (b) ceases to be used for the purposes of R&D or (c) ceases to be used for the purposes of the same trade by the company.

 

4. WITHHOLDING TAX

 In general, Irish resident companies must deduct 20% withholding tax on dividends and other profit distributions.

 There are, however, a number of situations where shareholders can receive dividends free from withholding tax from an Irish resident company providing certain documentation is filed.  For example:

  1. Where the recipient of a patent royalty payment is resident in an E.U. member state or a country in which Irish has a double taxation treaty in place.
  2.  In situations where no tax treaty is in place, unilateral relief for foreign tax suffered on royalties received from abroad is available.

 Extensive exemptions are available with regard to dividend payments to:

  1. Irish resident companies
  2. Pension Funds
  3. Companies controlled by residents from an E.U. member state or tax treaty country and not under the control of Irish residents.
  4. Companies that are not resident in an E.U. / treaty country but which are controlled by tax treaty residents
  5. Individuals resident in an E.U. member state or tax treaty country

 As a result of these exemptions it is generally possible to extract profits from an Irish resident company by way of dividends free from Irish tax.

 

A point to remember:

Withholding tax of 20% may apply to interest payments on loans/advances paid in the course of a trade or business to an E.U./Treaty country resident company.  Providing the loan is capable of lasting in excess of twelve months no withholding tax should apply.

 

5. STAMP DUTY

 Intellectual Property can be transferred to an Irish resident company without incurring Stamp Duty in Ireland.

Goodwill that is directly attributable to such IP is also covered by this stamp duty exemption.

 

SUMMARY

 Ireland has one of the most competitive tax structures for trading and holding companies.  The main tax advantages are:

  1. 12½% standard rate of Corporation Tax.
  2. Significant Tax Credits for R&D Expenditure
  3. No Capital Duty on incorporation.
  4. Generally no Irish Stamp Duty on the transfer of Intellectual Property
  5. Exemption for gains on the disposal of shares in a subsidiary company.
  6. Tax Relief on the acquisition and development of Intellectual Property.
  7. Exemption from withholding taxes to companies resident in E.U. member states and countries with which we have a double taxation treaty.
  8. Availability of 25% Tax credit for capital expenditure incurred on buildings constructed or refurbished for the purposes of carrying on an R&D activity.

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FINANCE ACT 2013

FINANCE ACT 2013

Finance Act 2013 contains the legislative provisions for a number of changes to the Irish tax system under all the main tax heads including Income Tax, Corporation Tax, Capital Gains Tax, Excise, Value Added Tax, Stamp Duty and Capital Acquisitions Tax.

Due to the amount of changes it is not possible to detail each individual provision so I decided to focus on a cross section of amendments to give a general overview.  The legislative provisions I have selected will have an affect on most if not all Irish individuals whether resident and domiciled or resident and non-domiciled; employed or unemployed; retired or still working; self employed or PAYE workers; corporate structures or individuals, etc.:

  1. Universal Social Charge
  2. The Remittance Basis for Income Tax
  3. The Remittance Basis for Capital Gains Tax
  4. Taxation of certain Social Welfare Benefits
  5. Mortgage Interest Relief
  6. Donations to approved bodies
  7. Farm Restructuring Relief
  8. FATAC – The US Foreign Account Tax Compliance Act
  9. Close Company Surcharge
  10. Stamp Duty

 

1. UNIVERSAL SOCIAL CHARGE

Finance Act 2013 introduced legislation to eliminate the 4% rate of Universal Social Charge applicable to individuals aged seventy years and over where their aggregate or combined income exceeds €60,000.00.

According to Section 3 Finance Act 2013, individuals aged seventy years or over will be subject to the normal rates of Universal Social Charge where the individual’s aggregate income exceeds €60,000; in other words:

  • 2% on first €10,036
  • 4% on next €5,980
  • 7% on the balance (10% where the relevant income exceeds €100,000.00)

No marginal relief will be available.  This means that in situations where the individual’s income exceeds the threshold amount, the higher rate of the Universal Social Charge will apply to the entire income and not just to the excess over €60,000.00.

 

How is “Aggregate Income” defined?

 “Aggregate Income” includes the aggregate of all “relevant emoluments” including pensions, employment income and benefit-in-kind if applicable and “relevant income” including rental income, dividend income, income from a trade or profession, etc.

It does not include:

  • Social Welfare Payments or
  • Deposit Interest subject to DIRT (Deposit Interest Retention Tax)

 

 What about the Medical Card holders?

 Previously medical card holders were entitled to avail of the special reduced Universal Social Charge rate of 4%.

According to this new amendment, individuals holding medical cards will be liable to pay Universal Social Charge at the normal rates if his/her aggregate income exceeds €60,000.00.

This will mainly affect individuals with high earnings from other E.U. member states who transfer to Ireland but have social security arrangements in their own country.  Under E.U. law these individuals qualified for medical cards in Ireland and prior to Finance Act 2013 they would have been entitled to the reduced USC rate of 4%.

 

 2. THE REMITTANCE BASIS FOR INCOME TAX

This legislative amendment was introduced as an anti-avoidance measure to ensure that an individual who is resident and/or ordinarily resident in Ireland but non-domiciled cannot avoid paying the correct tax on the remittance of income into Ireland.

Under the remittance basis an individual is only liable to Irish Tax on income he/she brings into Ireland.  If the income is from an “earned” source then Income Tax, Universal Social Charge and PRSI are levied.

The changes to the Taxes Consolidation Act are most easily explained in an example:

  • Sean Murphy is Irish resident for the past three years but is U.S. domiciled.
  • He earned €200,000 rental income from his investment properties located in the U.S. over a two year period.
  • He did not remit any of this income into Ireland.
  • Instead he invested this €200,000 in a property in Spain.
  • In January 2013 he gave the Spanish property to his wife Mary, as a gift while on holiday there.
  • Mary is also Irish resident but U.S. domiciled.
  • On 1st March 2013 Mary sold the property for €250,000.
  • On 1st May she lodged the proceeds into her Irish bank account which was opened in her sole name.
  • The lodgement of €250,000 by Mary into her own bank account is treated as a remittance by Sean because it occurred after 13th February 2013.
  • John is liable to pay Income Tax on the remittance, being the lodgement of funds into Mary’s Irish bank account.
  • Mary will also be liable to Capital Gains Tax on €50,000, being the gain in value on the Spanish property because she remitted the gain into Ireland in May 2013.

 

Summary of the main points

Where there is an application of income from foreign securities or possessions by an Irish resident or ordinarily resident individual who is non-domiciled who then:

a)      makes a loan to his/her spouse or civil partner or

b)      transfers money to his/her spouse or civil partner or

c)      acquires property that is subsequently transferred to his/her spouse or civil partner

It will be deemed to be a taxable remittance for Income Tax purposes for that Irish resident, non-domiciled individual where the sums are received in the state on or after 13th February 2013 from any of the following sources:

a)      Remittances payable in the state

b)      Property imported

c)      Money or value arising from property not imported

d)      Money or value received on credit or account in relation to such remittances, property, money or value.

 

3. THE REMITTANCE BASIS FOR CAPITAL GAINS TAX

As with the Income Tax legislation, this new subsection provides that where an Irish resident, non-domiciled individual makes a transfer outside the state, of any chargeable gains, which would otherwise have been liable to Capital Gains Tax on the remittance basis, to his/her spouse or civil partner, any amounts remitted into Ireland on or after 13th February 2013 deriving from that transfer will be treated as having been remitted by the individual who made the transfer to his/her spouse or civil partner.

It is important to remember that the provisions apply to a remittance by the spouse or civil partner on or after 13th February 2013 which means that any chargeable gains historically transferred are within the scope of the new provisions of Finance Act 2013 where the remittance into Ireland occurs on or after 13th February 2013.

 

 4. TAXATION OF CERTAIN SOCIAL WELFARE BENEFITS 

From 1st July 2013 certain Social Welfare Benefits not previously chargeable to Income Tax will come into the Income Tax net including:

  1. Maternity Benefit
  2. Adoptive Benefit
  3. Health & Safety Benefit

Revenue will now be permitted to amend tax credit certificates and standard rate cut off points to collect the tax arising on these benefits.

These benefits are not liable to the Universal Social Charge.

 

What happens if the salary is paid by the Employer during Maternity Leave?

Previously the employer paid the full salary to the employee less an amount representing the maternity benefit.  The net salary was liable to Income Tax, Universal Social Charge and PRSI while the employee received the Maternity Benefit tax free.

The employer received a tax saving on employer’s PRSI for the amount of the Maternity Benefit received by the employee.

From 1st July 2013 onwards the employee will pay up to 41% Income Tax on the amount of the Maternity Benefit.

 

5. MORTGAGE INTEREST RELIEF

Prior to Finance Act 2013 Mortgage Interest Relief was due to expire at the end of 2012.

Section 9 Finance Act 2013 introduced transitional provisions in relation to mortgage interest relief which allows certain loans taken out in 2013 to be deemed to have been taken out in 2012.  These include:

  • A loan taken out to purchase a site for which planning permission has been obtained on or before 31st December 2012 and in respect of which a qualifying residence is built on that land or
  • A loan taken out by an individual on/after 1st January 2012 and on/before 31st December 2012 which has been used for the construction of a residential premises on the site/land which the individual purchased on/after 1st January 2012 and on/before 31st December 2012.
  • A facility agreement or loan agreement which was in place on/after 1st January 2012 and on/before 31st December 2012 to provide a loan to an individual which is partly drawn down in 2012 with the remainder being drawn down in 2013.  The loan must be for the repair, development or improvement of a residential premises which is the individual’s qualifying residence.

It is important to remember that where planning permission is required, it must have been granted prior to 31st December 2012 for the relief to apply.

 

6. DONATIONS TO APPROVED BODIES

Prior to the Finance Act 2013, tax relief for donations was given in two ways:

  1. The self employed individuals and companies received a tax deduction for donations made to approved bodies subject to certain conditions.
  2. PAYE workers (employees paid through the PAYE system) did not obtain a tax deduction.  Instead the approved body applied to Revenue for a repayment as if the PAYE worker had made the donation net of tax at the individual’s marginal tax rate i.e. 41%.

The new provisions have resulted in:

  1. The distinction between self employed individuals and PAYE workers has been removed.
  2. The approved body (i.e. the Charity) can reclaim a specified amount of the donation rather than the self employed individual receiving a tax deduction for the donation through the self assessment system.
  3. The specified rate is 31% now instead of the individual’s marginal tax rate of 41%.
  4. There is a cap of €1,000,000 on the aggregate qualifying donations in any year of assessment from any individual donor to approved bodies.
  5. There is still a 10% restriction for donations to approved bodies with which the individual donor is associated.
  6. Certification by donors is being simplified.
  7. Donors no longer need to provide “appropriate certificates” instead they will provide annual or enduring certificates that can be renewed.
  8. Enduring Certificates will apply for five consecutive years of assessment and can be renewed.

What does this mean?

  1. The net cost to a self-employed individual making the minimum donation of €250.00 has increased from €148.00 (i.e. €250 x 41%) to €250.00.
  2. Since self employed individuals with earnings taxed at the marginal rate are more likely to make donations of €250.00 than self employed individuals taxed at the standard rate then this is likely to result in a significant shortfall in donations for approved bodies.

Final Points

  1. Corporate donations are not affected by the new reclaim procedures for individuals or the annual cap of €1,000,000 on relevant donations.
  2. The relief is only available in respect of donations made by Irish resident individuals.
  3. Donations from non-resident individuals do not qualify regardless of the amount of tax paid by them in Ireland which doesn’t appear to make any sense especially since non resident companies can obtain a tax deduction for donations.

 

7. FARM RESTRUCTURING RELIEF

This new relief announced in the 2013 Budget enables individual farmers to obtain relief from CGT (Capital Gains Tax) where there is a sale or exchange of agricultural land where other agricultural land is being purchased or acquired under an exchange.

This is subject to Ministerial Order to take effect.

To qualify for the relief the following conditions must be fulfilled:

  1. The sale / purchase and exchange of land is between farmers (i.e. both parties must be farmer) who spend not less than 50% of that individual’s normal working time farming and
  2. A farm restructuring certificate must be issued by Teagasc making the agricultural land qualifying land and
  3. Where the qualifying land is purchased / acquired / exchanged in joint names, each joint owner must be a farmer in his/her own right.  This excludes spouses and civil partners and
  4. The first sale or purchase must occur in the relevant period (i.e. between 1st January 2013 and 31st December 2015) with the matching purchase or sale taking place within two years from that date or
  5. Where there is an exchange both transfers under the exchange must take place between 1st January 2013 and 31st December 2015 and
  6. The consideration for the qualifying land being purchased or exchanged must equal or exceed the proceeds from the sale of the qualifying land for the relief to be granted in full.  In other words, relief is given in full where the value of the land sold/exchanged is less than or equal to the value of the land purchased / acquired by exchange.
  7. Where the consideration for the qualifying land purchased or exchanged is less than the consideration on the sale of the qualifying land then the relief is granted by reducing the chargeable gain by the same proportion that the acquisition costs bear to the sale/exchange proceeds for the qualifying land.

Can the Relief be clawed back?

  1. The relief can be clawed back if the qualifying land is sold within five years from the date of purchase or exchange.
  2. The clawback will not arise in the case of compulsory acquisition.

 

8. FATAC – US FOREIGN ACCOUNT TAX COMPLIANCE ACT

The US Foreign Account Tax Compliance Act 2010 comes into effect in 2014.

The aim of this legislation is to ensure that US citizens pay US tax on income arising from overseas investments.

The Finance Act 2013 introduced legislation which allows for the Irish Revenue Commissioners to make regulations for the purpose of implementing this Ireland US agreement.

The regulations will require that certain financial institutions register and provide a return of information on accounts held, managed or administered by the financial institution.  A return of information on payments must also be made.

The financial institutions will be required to obtain a US TIN from account holders.

Finance Act 2013 empowers Revenue officers to enter the premises of the financial institution at all reasonable times to ensure the correctness and completeness of a return and to examine the administrative procedures in place for the purposes of complying with the financial institution’s obligations under the regulations.

Section 891E(10) authorises Revenue to communicate the information obtained to the Secretary of the U.S. Treasury within nine months of the end of the year in which the return is received, notwithstanding Revenue’s obligation to maintain taxpayer confidentiality.

Section 32 of the Finance Act 2013 that introduced the new s.891 is enabling legislation.  The regulations will contain their own commencement provisions.

 

9. CLOSE COMPANY SURCHARGE

Finance Act 2013 increases the de minimis amount of undistributed investment and rental income from €635 to €2,000 which may be retained by a Close Company without giving rise to a surcharge.

A similar amendment is being made to increase the de minimis amount in respect of the surcharge on undistributed trading or professional income of certain service companies.

The aim of these changes is to improve cash flow of close companies by increasing the amount a company can retain for working capital purposes without incurring a surcharge.  Although it’s difficult to imagine how undistributed income of €2,000 could possibly make that much of a difference!

 

10. STAMP DUTY

Finance Act 2013 introduced anti-avoidance measures to target “resting in contract” and other structures used in relation to certain land transactions.

The main points are as follows:

  1. Where a contract or agreement for the sale of land or an interest in land is entered into where (1) 25% or more of the consideration is paid under the contract or agreement and (2) an electronic or paper return along with the relevant stamp duty payable hasn’t been filed and paid within thirty days then the contract or agreement is chargeable to stamp duty as if it were a conveyance or transfer of interest in the land.
  2. Where stamp duty is paid on a contract and a conveyance is ultimately completed there is a provision for crediting the stamp duty paid on the contract against any stamp duty that would be payable on the conveyance.  The conveyance must be made “in conformity with the contract.”
  3. If the contract or agreement is rescinded or annulled, the stamp duty will be returned provided this is shown to the satisfaction of the Revenue.
  4. There are no exclusions from the charge for tax incentive properties.
  5. Where a landowner (1) enters into an agreement with another person that allows that individual to enter onto the land to carry out developments on the land and (2) 25% or more of the market value of the land is paid to the landowner other than as consideration for the sale or all or part of the land, then the agreement is chargeable with stamp duty as if it were a conveyance.
  6. An agreement for land leases exceeding thirty five years will be stampable as if they were actual leases made for the term and consideration mentioned in the lease agreements where 25% or more of the consideration specified in the agreement for lease has been paid.
  7. This legislation is applicable to all instruments executed on or after 13th February 2013 with the exception of instruments executed solely “in pursuance of a binding contract or agreement entered into before 13th February 2013.”
  8. Where the agreement for lease has been stamped, stamp duty on the lease will be limited to €12.50.

What is meant by developments?

  1. The construction, demolition, extension, alteration or reconstruction or any building on the land or
  2. Any engineering or other operation in, on, over or under the land to adapt it for materially altered use.

 

CONCLUSION

This has been a very comprehensive Finance Act with many far reaching amendments. Over the next few weeks I will be focusing on areas significantly affected by the 2013 Finance Act as they deserve more detailed explanations to properly outline the changes to the Irish tax system:

 

 

LOCAL PROPERTY TAX – CLARIFICATIONS

 

CLARIFICATION OF LPT

Revenue has clarified the following points:

The “Late” surcharge could apply to a taxpayer’s Income Tax Return in circumstances where the taxpayer is not fully LPT compliant by the time the Income Tax Return is filed.

This surcharge will not exceed the amount of LPT due where the taxpayer subsequently returns and pays his/her Local Property Tax.

For those taxpayers who pay and file via ROS, the surcharge won’t apply where the individual is LPT compliant by the extended deadline date i.e. 14th November 2013.

 

What about payment options for 2014?

Where the taxpayer has elected to pay the LPT via the phased payment option for 2013 that option will automatically apply for 2014.

For taxpayers who have made a once off lump sum payment in 2013, Revenue will contact the taxpayer in the last quarter of 2013 to establish their preferred payment option for 2014.

 

FINAL REMINDERS

The due date for filing paper LPT Returns is Tuesday, 7th May 2013.

The deadline for filing via the ROS System is 28th May 2013.

If the taxpayer has not received an LPT Return from Revenue, he/she can file on line by selecting “I have not received a Property Pin” on the LPT website at http://www.revenue.ie