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Nestlé UK Ltd. loses its Case – Strawberry and Banana Nesquik are liable to standard rated VAT

 

Chocolate milk

 

Nestlé has lost its appeal against the original 2016 ruling by the UK’s First Tier Tribunal over the VAT treatment that should apply to its strawberry and banana flavoured Nesquik powders.

 

The First Tier Tribunal found in favour of the HMRC not repaying the £4 million of output VAT which had been over declared by Nestlé on these products.  Nestlé’s grounds for seeking this repayment were that the fruit flavoured powders were liable to the zero VAT rate as they were deemed to be “a powder for the preparation of beverages.”

 

The Tribunal held in favour of the HMRC that the products in question should remain at the standard VAT rate and as a result, no claim for the over declared output VAT is to be allowed.

 

Nestlé argued that strawberry and banana Nesquik should be zero rated. The reason being that they encourage milk drinking and milk is zero rated.

 

Nestlé also argued that these flavours should have the same VAT treatment as the chocolate flavour powder because they are in essence, the same product.

 

Both Nestlé and the HMRC agree that the chocolate flavoured Nesquik should be zero rated on the basis that this product contains cocoa thereby allowing it to fall within the list of “exceptions to the excepted items” according to the UK’s zero rating provisions.

 

The Upper Tribunal pointed out that there are number of other anomalies within the VAT system. For example, the fact fruit salad is zero rated while fruit smoothies are liable to VAT at the standard rate.

 

This case is likely to be appealed by Nestlé.

 

The lesson to be learnt from this case is that advice should always be sought in advance, especially with regard to new supplies, to ensure that the correct VAT treatment is always applied.

 

The full ruling can be found here:

 

 Nestlé UK Ltd and the Commissioners for Her Majesty’s Revenue and Customs, [2018] UKUT 29, Appeal number: UT/2016/120 

 

 

 

 

Image courtesy of tiverylucky at FreeDigitalPhotos.net

4% Stamp duty rebate on development land used for residential development

architecture-construction-build-building-162557

 

 

A stamp duty refund scheme in respect of land purchased to develop residential property was signed into the 2017 Finance Act on 25th December 2017.

 

The Act provides that where stamp duty, at the new higher rate of 6%. is paid on the acquisition of land which is subsequently used to build residential property, the purchaser will be entitled to a rebate of 4% being 2/3rds of the duty paid.

 

It is important to keep in mind that the refund of stamp duty is only applicable in relation to the proportion of the land used for residential development.

 

 

The Main Points of the Scheme are:

 

  • The scheme only applies where the residential development begins within thirty months of the date the land was acquired but before 1st January 2022.

 

  • It only applies to the construction of dwelling units.

 

  • It does not apply to the refurbishment or completion of existing or partially constructed units.

 

  • The time taken to conclude any planning appeal may be added to this 30 month period.

 

  • The development must commence on foot of a Commencement Notice served in compliance with the Building Control Regulations and must be completed within two years of the relevant Local Authority’s acknowledgement of the Commencement Notice.

 

  • There is a four year time limit on claiming a repayment.  Please be aware that the repayment does not carry interest and must be claimed using Revenue’s e-Stamping system.

 

  • The 4% duty refund can be claimed following the commencement of the works

 

  • Where the residential development is being carried out in phases, repayments can be sought on a phased basis i.e. the refund can be reclaimed on the commencement of each phase but only in proportion to the area of the land in each phase.

 

  •  75% of the land, for which the refund claim is made, must comprise of dwelling units.

 

  • If the legislative conditions are not met or if the works have not been completed within the 2 year deadline then Clawback Provisions will apply to this refund.

 

 

Despite the fact that this scheme has been signed into legislation there are still areas of uncertainty.  It is expected that Revenue will issue guidance material to clarify matters in due course.

 

 

Irish Employment Tax

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It’s very difficult to keep up to date with all the amendments to the Irish tax system so here is a summary of some of the changes to be mindful of in 2018:

 

 

1. Annual Membership Fees paid to a professional body (Revenue eBrief 04/18 published on 9th January 2018)

 https://www.revenue.ie/en/tax-professionals/ebrief/2018/no-0042018.aspx

 

The updated Revenue guidance notes allow an employee to claim a deduction for professional membership fees only in circumstances where:

  1. There is a statutory requirement for that employee to be a member of a specific professional organisation or body or to hold a practicing certificate in order to carry out the duties of his/her employment or
  2. In the absence of that professional membership or practicing certificate the individual cannot legally fulfill the full duties of his/her employment.

 

Where the employer pays the membership fee on the employee’s behalf and either of the above two conditions apply then no Benefit-in-Kind is deemed to have arisen.  Subsequently no payroll taxes will arise.

 

We would advise all employers to ensure the payment of professional membership fees on behalf of employees can be supported in the event of a Revenue Audit.

 

 

 

2. Increase in Employer’s Pay Related Social Insurance from 10.75% to 10.85% from 1st January 2018.

 

 

 

 3. Benefit-in-Kind Exemption of Electric Vehicles for 2018. 

Finance Act 2017 introduced this exemption for electric vehicles which were available for private use for employees during the 2018 tax year.  It is not clear whether or not this scheme will be extended into 2019 which may result in a low uptake in purchasing electric vehicles by employers.

 

The exemption applies to cars and vans deriving their power from an electric motor.

 

It does not apply to hybrid vehicles.

 

 

 

4. PAYE Modernisation or Real Time Reporting

From 1st January 2019 all employers will be required to accurately provide PAYE data to Revenue on a Real Time basis.

 

This effectively means:

  • Revenue will be able to automatically review employees’ payroll information and immediately identify any discrepancies and errors.
  • The PAYE information submitted to Revenue must be 100% correct.  In other words, the opportunity to amend errors at the end of the year has been elimited.

 

For further information, please follow the link:

https://www.revenue.ie/en/tax-professionals/ebrief/2017/no-892017.aspx

 

We would advise all employers to take the time, sooner rather than later, to ensure their payroll processes will be adequate to handle the increased obligations of the Real Time Reporting.

 

 

 

 Here is a list of other relevant Revenue eBriefs:

 
Home Carer Tax Credit – Revenue eBrief No. 009/18 (29 January 2018) https://www.revenue.ie/en/tax-professionals/ebrief/2018/no-0092018.aspx

 

Change in Basis of Assessment – Schedule E – Revenue eBrief No. 127/17 (29 December 2017) https://www.revenue.ie/en/tax-professionals/ebrief/2017/no-1272017.aspx

 

Taxation of payments to craft apprentices by Education and Training Boards –Revenue eBrief No. 126/17 (29 December 2017)

 

Benefit-in-Kind on use of Company Vans – Revenue eBrief No. 124/17 (28th December 2017) https://www.revenue.ie/en/tax-professionals/ebrief/2017/no-1242017.aspx

 

Exemption from Income Tax in respect of certain payments made under employment law – Revenue eBrief No. 118/17 (20 December 2017) https://www.revenue.ie/en/tax-professionals/ebrief/2017/no-1182017.aspx

 

PAYE Services: Tax and Duty Manual Updates – Revenue eBrief No. 111/17 (01 December 2017) https://www.revenue.ie/en/tax-professionals/ebrief/2017/no-1112017.aspx

 

Amendments to the Employment and Investment Incentive on 2nd November 2017 – Revenue eBrief No. 99/17 (02 November 2017)
 https://www.revenue.ie/en/tax-professionals/ebrief/2017/no-992017.aspx

Stamp Duty for Non-Residential Properties

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As you are aware, Finance Act 2017 increased the rate of stamp duty on the transfer of non-residential property from 2% to 6% with effect from midnight on Budget Day.

 

The change applied to instruments executed on or after 11th October 2017.

 

This dramatic increase will, most likely, reduce the number of commercial property transactions carried out in Ireland in 2018.

 

On 27th October 2017, The Irish Revenue Commissioners published Revenue eBrief No. 94/2017 outlining the transactions eligible for the 2% Stamp Duty rate under Transitional Relief Measures:

 

In circumstances where a binding contract has been entered into before 11th October 2017 the rate of stamp duty will remain at 2%, provided the following two conditions are met:

 

  1. the instrument was executed before 1st January 2018, and

 

  1. the instrument contained certification that the instrument was executed on foot of a binding contract entered into before 11th October 2017.

 

 

A person who filed a stamp duty return before the enactment of the Finance Bill and who was satisfied that the transitional measures would have applied if the Finance Bill had been enacted, had two options:

 

  1. To file a return through the e-stamping system, pay stamp duty of 6% and be issued with a stamp certificate.  Now that the Finance Act has been enacted the filer can amend the Return, submit the relevant documents to Revenue thereby requesting a refund of 4% (i.e. the difference between the 6% and 2% rate). Please follow attached link for detailed instructions:

 https://www.revenue.ie/en/online-services/support/documents/help-guides/stamp-duty/amending-stamp-duty-return-on-ros.pdf or

 

  1. To file a return through the e-stamping system and pay the stamp duty at the lower rate of 2%.  In this situation a stamp certificate was not be issued at this stage.

 

On 4th January Revenue published guidelines on how this postponed stamp certificate can be obtained. To receive the certificate, you must amend the Stamp Duty Return by following the link:

https://www.revenue.ie/en/online-services/support/documents/help-guides/stamp-duty/amending-stamp-duty-return-on-ros.pdf

 

For those who filed their Returns but did not pay the correct amount of Stamp Duty at the 2% rate, you will not have received a Stamp Certificate.

 

In order to obtain the stamp certificate you must amend the Stamp Duty Return, pay the Stamp Duty of 2%, pay any Interest accruing on the late payment of Stamp Duty and pay any surcharge arising on the late filing of the Return, if relevant.

 

Once the payments have been processed your Stamp Certificate will issue automatically.

 

IMPORTANT TAX DATES 2018

Deadline Date

Relevant Tax Obligations

 

 

10th January 2018   Payment of Local Property Tax for 2018
  Extended payment date to 21st March 2018 if payment made by SDA via ROS
31st January 2018   Payment of Capital Gains Tax for assets disposed of between 1st December
    and 31st December 2017
15th February 2018   Filing of 2017 P.35 and P.35L for Employers.
  Provision of P.60s to Employees
  Deadline date extended to 23rd February if filing via ROS
31st March 2018 Deadline date for Husband / Wife / Spouse / Civil Partner to submit an election for
   change of assessment for 2018 using either Assessable Spouse or Nominated
   Civil Partner’s Election Form
31st October 2018   Filing 2017 Tax Return
  Payment of balance of 2017 Income Tax
  Payment of 2018 Preliminary Tax
  Filing of IT38 (i.e. Gift/Inheritance Tax) Returns for benefits taken between 1st
   September 2017 and 31st August 2018
  Payment of Pension Contributions for relief in the 2017 year of assessment
15th December 2018   Payment of Capital Gains Tax liability on gains arising between 1st January 2018 to
    30th November 2018
31st December 2018 •  Final Date for the submission of a Repayment Claim for 2014 year of assessment

 

 

 

 

 

 

 

 

 

 

 

BUDGET 2018

Government Building

 

The Minister for Finance, Public Expenditure and Reform Paschal Donohoe T.D delivered his first Budget today, on 10th October 2017, which concentrated more on expenditure than on tax changes.

 

The Minister announced a number of positive measures to assist small and medium sized enterprises prepare for “Brexit” as well as confirming Ireland’s commitment to the 12½% corporation tax rate.

 

We are pleased to bring you our summary of the tax measures set out in Budget 2018.

 

 

PERSONAL TAXATION

 

Universal Social Charge

The USC has been cut for lower and middle income earners.

 

The 2.5% USC rate has been reduced by 0.5% to 2% and the band has been increased to €19,372 from €18,772 which will benefit employees earning the minimum wage.

 

The 5% USC rate has been reduced by 0.25% to 4.75%

 

Medical card holders and individuals aged 70 years and over whose combined income does not exceed €60,000 per annum will only be liable to pay a maximum USC rate of 2%.

 

For self-employed individuals with income of over €100,000 the 11% rate will continue to apply

 

 

Income Tax

The higher or marginal tax rate will remain at 40% for 2018.

 

The income tax standard rate band, however, will be increased by €750 to €34,550 i.e. the entry point at which the 40% income tax rate applies has been increased from €33,800 to €34,550 for a single person and from €42,800 to €43,550 for married couples with one income.

 

The marginal rate of tax for individuals earning between €34,551 and €70,044 will be 48.75%.

 

The marginal rate of tax for individuals earning in excess of €70,044 will remain at 52% for employees.

 

The marginal rate of tax for self-employed individuals earning in excess of €100,000 will remain at 55%.

 

 

Earned Income Credit

For self-employed individuals, the earned income tax credit will increase by €200 to €1,150.

 

No reference was made in today’s Budget speech as to when future increases to this tax credit would arise to bring it in line with the PAYE Tax Credit of €1,650.

 

 

Home Carer Tax Credit

The Home Carer Tax Credit will increase by €100 from €1,100 to €1,200.

 

The €7,200 income threshold remains

 

This tax credit can be claimed by a jointly-assessed couple where a spouse/civil partner cares for one or more dependents regardless of the number of individuals cared for.

 

 

Deposit Interest Retention Tax (DIRT)

The rate for Deposit Interest Retention Tax for 2018 will be charged at 37%.

 

 

PRSI

The National Training Fund Levy will be increased over the next three years and will apply to employees under Classes A and H by increasing Employer’s PRSI as follows:

 

a)      10.85% in 2018

b)      10.95% in 2019

c)      11.05% in 2020

 

 

Mortgage interest relief 

Mortgage Interest Relief for residential property owners which was scheduled to be abolished from the end of this year will continue until 2020.

 

This relates to home owners who took out qualifying mortgages between 2004 and 2012.

 

The relief will be reduced as follows:

a)      to 75% in 2018

b)      to 50% in 2019

c)      to 25% in 2020

 

Following a change in last year’s Finance Act, the amount of mortgage interest allowable against taxable rental income will increase to 85% with effect from 1st January 2018.  However, there was no reference, in today’s Budget speech, to the expected increase from 80% to 85% mortgage interest relief on rented residential property.

 

As you may remember, in Budget 2017, it had been announced that100% mortgage interest relief for rental properties would be restored on a phased basis by 2020.

 

  

 Deductibility of pre-letting expenses

Expenses incurred prior to the first letting of a property are not deductible against rental income, with a few exceptions.

 

Following today’s Budget, property owners who rent out residential properties which have been vacant for a period of twelve months or more will be entitled to a tax deduction of up to €5,000 per property.

 

These expenses must be revenue in nature and not capital expenditure.

 

The relief will be subject to a clawback of the property is withdrawn from the rental market within a four year period.

 

This relief will be available for qualifying expenditure between now and the end of 2021.

 

 

Benefit-in-kind on motor vehicles

The minister announced a number of measures to incentivise the purchase of electric cars including:

a)      a 0% rate of Benefit-in-Kind for electric cars and the electricity used at to charge these vehicles while at work.

b)      a VRT Relief measure

 

 

 

CAPITAL ACQUISITIONS TAX

No changes were announced to the CAT tax-free thresholds in the Budget.

 

 

 

CAPITAL GAINS TAX

No changes were announced to CGT rates in the Budget.

 

Seven Year Exemption

The Minister relaxed the “Seven Year Exemption” which applied to land or buildings purchased between 7th December and 31st December 2014.

 

Disposals of qualifying assets between years four and seven will now qualify for the full Capital Gains Tax Exemption

 

 

VAT

 

VAT Compensation Scheme

A VAT refund scheme was introduced in order to compensate charities for input VAT incurred on expenditure.

 

This scheme will take effect from 1st January 2018 but will be paid one year in arrears. In other words charities will be entitled to claim an input VAT credit in 2019 in relation to expenses incurred in 2018.

 

Charities will be entitled to a refund of a proportion of their VAT costs based on the level of non-public funding they receive.

 

The Minister also confirmed that a capped fund of €5 million will be available to fund the scheme in 2019.

 

For further information please visit:

http://www.budget.gov.ie/Budgets/2018/Documents/VAT_Compensation_Scheme_For_Charities.pdf

 

9% VAT Rate

The reduced VAT rate of 9% for goods and services, mainly related to the tourism and hospitality industry, has been retained.

 

 

VAT on Sunbed Sessions

 In line with the Irish Government’s National Cancer Strategy, the VAT rate on sunbed services will increase from 13.5% to 23% from 1st January 2018.

 

 

 

BUSINESS TAXES

 

Corporation tax rate

The government has made a firm commitment to retaining the 12½% Corporation Tax rate to attract foreign direct investment.

 

 

 Capital Allowances for Intangible Assets

The Minister confirmed that he would be limiting the amount of capital allowances that can be claimed for intangible assets.

 

A tax deduction for capital allowances under Section 291A TCA 1997 on intangible assets and any associated interest cost will now be limited to 80% of the relevant income arising from the intangible asset in the accounting period from midnight of 10th October 2017.

 

 

Key Employee Engagement Programme (KEEP)

The Minister announced plans for a new share based remuneration incentive for unquoted SME companies aimed at improving the ability of SMEs to attract and retain key staff.

 

This incentive will be available for qualifying KEEP share options granted between 1st January 2018 and 31st December 2023.

 

No income tax, PRSI or USC will be charged on the exercise of the share options. Instead gains from exercising these share options will only be liable to CGT @ 33%.

 

The tax becomes payable when the shares are sold.

 

State Aid approval will be required to introduce this scheme.

 

 

Accelerated capital allowances for expenditure on energy-efficient equipment

Following a review of the accelerated capital allowances scheme for energy efficient equipment, the current scheme is being extended for a further three years to the end of 2020.

 

 

STAMP DUTY

 

Stamp Duty on commercial property

The rate of stamp duty on commercial property transactions will have increased from 2% to 6% with effect from midnight of 10th October 2017.

 

A stamp duty refund scheme is also being introduced for commercial land acquired for the development of housing, on condition that the development must begin within 30 months of the purchase of the land.

 

It is expected that further details of the relief and the conditions will be outlined in the Finance Bill.

 

 

FARMING AND THE AGRI-SECTOR

 

Stamp duty

The Stamp duty rate of 1% remains for inter-family farm transfers for a further three years.

 

The Stamp Duty exemption for Young Trained Farmers on agricultural land transactions will also be retained.

 

Leasing land for solar panels

The leasing of agricultural land for the use of solar panels will continue to be classified as agricultural land for the purposes of the CAT Agricultural Relief and the CGT Retirement Relief providing the solar panel infrastructure does not exceed 50% of the total land holding..

 

 

BREXIT

 

Brexit Loan Scheme 

A new Brexit Loan Scheme has been announced. A loan scheme of up to €300 million will be available at competitive rates to SMEs to assist them with their short-term working capital needs, with particular attention given to food industry businesses.

 

Details of this scheme will be provided by the Tánaiste and Minister for Business, Enterprise and Innovation, and the Minister for Agriculture, Food and the Marine.

 

Plans were also announced to hire over 40 additional staff across the Department of Business, Enterprise and Innovation and enterprise agencies in 2018 to respond to the issues arising from Brexit.

 

 

Increased funding

The Minister announced increased funding of €64 million to support the agri-sector. Of this, a further €25 million is to be provided to the Minister for Agriculture, Food and the Marine to develop further Brexit loan schemes for the agri-food sector in addition to the loan scheme discussed above.

 

 

OTHER CHANGES

 

Sugar Tax

 From 1st April 2018 two rates of tax on sugar-sweetened drinks will be introduced subject to State Aid approval.

 

The first will apply at a rate of 30 cent per litre where the sugar content is above 8g per 100ml.

 

The second rate of 20 cent per litre will apply where the sugar content is between 5g and 8g per 100ml.

 

Drinks with less than five grams of sugar won’t attract a sugar tax.

 

 

Vacant site levy

The vacant site levy has been increased from the current 3% levy in the first year to 7% in second and subsequent years to encourage land owners to develop vacant sites rather than “hoarding” land.

 

The vacant site levy is due to come into effect in 2018.

 

An owner of a property on a vacant site register who does not develop their land in 2018 will be liable to the 3% levy in 2019 and a further 7% levy in 2020 and each year thereafter until the land is developed.

 

From 1st January 2017, each local authority is obliged to maintain a register of vacant sites to include on the register, details of any site, which they believe, has been vacant for the previous twelve month period.

 

 

 

 

Taxation of Rental Income in Ireland

House for Rent

What is Rental Income?

According to the Revenue’s website, Rental income includes:

  • “the renting out of a house, flat, apartment, office or farmland.
  • payments you receive for allowing advertising signs or communication transmitters to be put up on your property
  • payments you receive for allowing a right of way through your property
  • payments you receive for allowing sporting rights such as fishing or shooting rights on your property
  • payments you receive from your tenant to cover the cost of work to your rental property. Your tenant must not be required to pay for this work per the lease
  • certain lease premiums, as well as deemed and reverse premiums
  • Conacre lettings
  • service charges for services connected to the occupation of the property
  • payments from insurance policies that cover against the non-payment of rent.”

 

 

What about Local Property Tax?

According to Revenue, LPT is not a deductible expense against rental income under Section 97 TCA 1997.

 

According to the Thornhill Group, for Income Tax and Corporation Tax purposes, Local Property Tax should be deductible in a similar manner to commercial rates.  Despite the fact that the Government has accepted this recommendation in principle no further details of when and how this deduction will take effect have been made available.

 

 

What is liable to Tax? 

The net profit arising from a rental property is taxed at an individual’s marginal rate of tax being Income Tax plus PRSI plus Universal Social Charge.

 

In other words, tax is charged on the gross rents receivable less a deduction for all allowable expenses.

 

It is important to remember that a profit or loss computation must be carried out for each source of rental income.

 

The rental income on which tax is levied equals the total rental profits less the total losses from all rental sources combined.

 

Deductions in arriving at net profit include:

  • Rates,
  • Management Fees,
  • Repairs & Maintenance
  • Ground Rents
  • Certain Mortgage Protection Policy Premiums
  • Insurance,
  • Legal, Accountancy and Advertising Fees,
  • The cost of services provided that weren’t repaid by the tenant including electricity, water charges, refuse charges, etc.
  • Wear & Tear on Furniture and Fittings, etc.

 

A deduction is also available for interest on monies borrowed for the purchase, or repair of the rental property.

 

For rented residential property, the allowable mortgage interest relief is restricted to 75% for the 2016 year of assessment and is dependent on the landlord registering the tenancy with the Residential Tenancy Board.

 

For the 2017 tax year, the mortgage interest deduction has increased from 75% to 80%.

 

The deductible amount will be increased by 5% every year from then on so that by 2021 100% of the mortgage interest will be deductable against the rental income received from qualifying residential lettings.  In other words, the allowable rate will be 85% in 2018, 90% in 2019, 95% in 2020 and 100% in 2021.

 

The landlord may be able to claim 100% mortgage interest relief. To qualify he/she must:

a)       rent out the residential property for three years to tenants receiving certain social housing supports and

b)       be registered with the Private Residential Tenancies Board (RTB)

 

In situations where the rented residential property was purchased from the taxpayer’s spouse or civil partner, the interest will not be allowed as a deduction in computing the rental profits. This measure is aimed at preventing married couples and civil partners from generating interest by selling properties to each other and borrowing the necessary funds to do so.

 

 

How are Irish Rental Losses Treated?

In situations where a rental loss arises, it can be offset against the rental profit from another property.  If there are insufficient profits for offset then it can be carried forward against future rental profits only.

 

The order of offset is very important.  The landlord must use Capital Allowances first before offsetting the rental losses carried forward from an earlier year and it is not possible to carry rental losses back to a preceding tax year.

 

It is not possible to offset rental losses made by one spouse or civil partner against the rental profits of the other.

 

Losses arising from uneconomic rentals cannot be offset against other rental profits. Uneconomic rentals are defined as those where the expenses will always exceed the income of a particular rental source.

 

It is not possible to offset rental losses against income generated from other sources including salary, trade income, dividends, deposit interest, etc.

 

Please keep in mind that foreign rental losses can only be written off against foreign rental income.

 

 

What about Pre-Letting Expenses?

The general rule in tax legislation is that any expense incurred prior to the first letting of a rental property is not allowable. The reason being, that such expenses are not deemed to be expenses that relate to a particular lease.  Therefore expenses incurred on buying furniture, painting and decorating the property, etc. before the first letting by its current owner and before the first occupancy by the tenant will not be allowable deductions.

 

There are, however, two exceptions based on the decision in Stephen Court Limited v Brown (HC 198/2 No 293 S.S.):

a)       Advertising or marketing costs connected with the first rental of the property and

b)       The legal costs incurred in drawing up the first tenancy lease for the rental property.

 

 

 

What is Rent-a-Room Relief?

If an individual rents a room or rooms in his/her sole or main residence and the gross income received does not exceed €12,000 for the 2016 year of assessment or €14,000 for 2017 onwards then no Income Tax, Universal Social Charge or Pay Related Social Insurance will be payable by that individual. In other words, if the rental income does not exceed the annual exemption limit in the year of assessment then the profit or loss arising on the rent will be deemed to be NIL.

 

Included in the annual exemption limits are payments from the renter/tenant for food, laundry or similar goods and services.

 

Where the income exceeds €12,000 in 2016 or €14,000 in 2017, the entire amount is taxable.

 

In situations where more than one individual is entitled to the rent, the annual exemption limit is divided between all the individuals concerned.

 

It is important to keep in mind that this relief is only available to individuals. In other words it does not apply to companies or partnerships which rent out residential properties.

 

This relief is available for both individuals who rent as well as individuals who own their own home.

 

Claiming Rent-a-Room Relief will not affect an individual’s entitlement to mortgage interest relief or Principal Private Residence Relief on the disposal of his/her sole or main residence.

 

Income from Rent-a-Room must be included in an individual’s annual Tax Return under “Exempt Income.”

 

The Rent-a-Room Relief will not apply where a child pays rent to a parent.

 

The Rent-a-Room Exemption is not compulsory.  An individual may elect to have any rental profits or losses from this source assessed under the normal Case V Schedule D rules for rental income.

 

 

Filing a Tax Return

All individuals in receipt of rental income must declare this information in his/her annual tax return on or before 31st October in the year following the year of assessment.

 

If the rental profit is less than €5,000 it can be declared through the Form 12.

 

If, on the other hand, the net rental income is over €5,000 the individual will be obliged to register for Income Tax and declare his/her rental income in a Form 11 under the self assessment rules.

 

Where the landlord is non-resident and in the absence of an Irish resident Agent, the tenant(s) should deduct tax from the rent at the standard rate and pay this tax over to Revenue.  The landlord will be entitled to a credit for the tax deducted by the tenant(s) and must file a Form R185 along with either a Form 11 or Form 12 depending on the amount of rental profit generated.

 

If, however, the landlord has engaged the services of a Tax Collection Agent in Ireland, this Irish resident individual will be responsible for filing the relevant tax return and submitting the appropriate tax payment on the landlord’s behalf.

 

image courtesy of mapichai @ freedigital photos 

Personal Taxes – Spain

 

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OVERVIEW

The Spanish system has two types of Personal Income Tax:

 

  1. PIT for Spanish resident individuals and
  2. NRIT for individuals who are not resident in Spain

 

Spanish resident individuals are generally liable to PIT on their worldwide income wherever it arises.

 

Non-resident individuals are chargeable to NRIT on their Spanish source income only.

 

 

 

RESIDENCE

An individual is liable to Spanish tax based on his or her residence.

 

An individual is deemed to be Spanish resident if he or she spends more than 183 days in the tax year (i.e. the calendar year) in Spain or if the individual’s main centre of business or professional activities or economic interests is located in Spain.

 

It is important to bear in mind that temporary absences from Spain are ignored when calculating the number of days for the purposes of establishing residency except where tax residence in another jurisdiction can be proven.

 

Where the individual does not satisfy the above 183 day rule, he or she will not be considered Spanish tax resident for the calendar year in question and as a result, Spanish source income including capital gains will be liable to NRIT.

 

In situations where an individual may be deemed to be tax resident in two jurisdictions in the same tax year, it is essential that the individual consult the relevant Double Taxation Agreement to establish what relief or exemption from Spanish Tax may be available.

 

Generally speaking, the credit for Spanish tax withheld on foreign source income and capital gains tax will be the lower of:

 

a)      Actual foreign tax withheld on the foreign source income which is equivalent to the Spanish PIT or NRIT

b)      Average effective PIT rate applied to the foreign source income taxed in the other jurisdiction.

 

 

 

 

 COMPLIANCE

Individuals must file a Tax Return and pay the relevant taxes within six months of the end of the calendar year i.e. 30th June following the year end, being 31st December.

 

Married couples may elect to file their tax returns either jointly or separately.

 

There are strict filing deadlines for non-resident individuals.  Please be aware that there are no deadline extensions available.

 

There are a number of penalties to consider including:

a)      Penalties for the underpayment of taxes range from 50% to 150% of the unpaid tax liability.

b)      Penalties for the late payment of taxes range from 5% to 20% where such payments are made on a voluntary basis and not as part of an audit or investigation.

c)      Statutory Interest on late payments will also apply.

 

 

WORK PERMITS / VISAS

Individuals entering Spain from outside the E.U., as either employees or self employed individuals, must obtain a work and residence permit prior to commencing their self employed or employment activity in Spain.

 

The Work and Residence permits are issued for a twelve month period.

 

It is possible to renew this permit two months in advance of its expiry date and always advisable to do so before the permit has expired.

 

For individuals entering Spain from E.U. member states, there is no requirement to possess a Work and Residence Permit.

 

For E.U., EEA or Swiss individuals who wish to remain in Spain beyond a three month period, they are required to register with the Spanish Authorities and obtain the Central Registry for Foreigners Certificate.

 

 

 

TAXES

For general taxable income received by Spanish resident individuals, progressive tax rates ranging from 19% to 48% are applied. These rates depend on the Autonomous Community in which the individual is deemed to be tax resident.  As a result, tax liabilities can vary from one autonomous region to another.

 

Dividends, Interest, Capital Gains and Savings Interest are taxed at the following rates:

  • 19% for the first € 6,000 of taxable income.
  • 21% for the following €6,000 up to €50,000 of taxable income.
  • 23% for income exceeding €50,000.

 

 

 

Non resident individuals are taxed at a flat rate of 24% on Spanish source income.  This rate is reduced to 19% for individuals who are tax resident in an EU member state or an EEA country with which there is an effective exchange of tax information treaty in place.

 

Income Tax is levied on the gross Spanish source income but there are no deductions or tax credits available for offset with the exception of certain expenses for E.U. tax resident individuals.

 

Investment income (i.e. Interest and dividends) arising for non resident individuals are liable to 19% tax although this figure may be reduced depending on the Double Taxation Treaties in place.  It is important to bear in mind that Interest for EU residents in tax exempt.

 

From 2016 onwards Capital gains will be taxed at 19% if arising from the transfer of assets.

 

Royalty income is liable to tax at 24%

 

Pensions are taxed at progressive rates ranging from 8% to 40%.

 

 

 

SOCIAL SECURITY

As a general rule, all employees working in Spain must be registered with the Spanish social security administration. The employer is obliged to make employer and employee contributions depending on the category of each employee and social security contributions are paid on salaries/wages.

 

The general contribution rate for employees is 6.35%.

 

The general contribution rate for employers is 29.9% in addition to a variable rate for general risk.

 

These rates depend on the activities engaged in by the companies as well as the employee’s employment and educational category.

Inbound assignees may continue to make social security contributions in their home countries in line with International Social Security Agreements and E.U. regulations and as a result claim an exemption from paying social security contributions in Spain.

 

To qualify for the exemption E.U. nationals must obtain the necessary official certification from the relevant Social Security Authorities in their country of origin.

 

There are three situations in which an exemption from Social Security in Spain may be claimed:

  1. In situations where a social security agreement between Spain and the individual’s country of origin exists which provides for such an exemption.

 

  1. Where the individual continues to be employed by an employer resident in the country of origin and as a result he/she continues to contribute to the social security system of his/her home country.

 

  1. Where the individual remains in Spain for between one and five years depending on the conditions of the social security agreement in place between Spain and that individual’s country of origin.

 

BUSINESS TAXES – SPAIN 2017

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There are a number of alternatives open to individuals wishing to invest in Spain.  These include setting up a limited company or forming a branch / permanent establishment.

 

Due to the number of Irish clients with trading companies in Spain, we have prepared a general summary of the taxes arising.

 

This is not a full and comprehensive guide to Spanish taxes and does not provide detail on the local operation of taxes.  As a result, we would always advise anyone with Spanish interests to seek the advice and expertise of a local tax professional.

 

 

RESIDENCE

Corporate tax is levied on the income of companies and other separate legal entities.

 

Spanish resident entities are liable to tax on their worldwide income and not just on profits from activities carried on in Spain.

 

What is a Spanish resident entity?

  1.  A company which is incorporated in Spain shall be regarded for the purposes of Spanish Corporate Tax as being resident in Spain under Spanish law.
  2.  The location of central management and control in Spain may bring the entity into the Spanish Corporate Tax regime.  For example if the legal headquarters/registered offices of the company are located in Spain or if it is effectively managed from Spain then the corporate entity is deemed to be Spanish resident.
  3.  In the event of the legal entity being resident in a country where no taxation is levied on its profits or gains (i.e. a tax haven) then that entity is deemed to be Spanish tax resident if the following arise:

a)      The majority of the entity’s main assets are located in Spain.

b)      The entity’s principal business activity is carried out in Spain.

c)      The strategic control is exercised in Spain

 

It is important to keep in mind that the above point (i.e. number 3) will not apply if the entity exercises its management and control in another country providing it does so for bona fide commercial reasons and not for the purposes of managing securities or other assets.

 

 

NON-RESIDENCE

Non-resident companies and entities are only liable to Corporate Tax on their Spanish income arising from business operations carried out by a Permanent Establishment within the jurisdiction (See Article 5 of the Ireland/Spain Double Taxation Agreement for a definition of Permanent Establishment).

It is important to be aware that a “Fiscal Representative” must be appointed by a non-resident individual or company to correctly handle all tax affairs when carrying out commercial activities in Spain.

 

 

TAX RATES

 

Corporate Tax

25% is the general tax rate for residents as well as non-residents carrying out commercial activities in Spain through a “Permanent Establishment.” Other tax rates may apply, however, depending on the type of company and the type of business carried out.

Where foreign companies have permanent establishments in Spain, Non-Resident Income Tax of 25% is chargeable on the income arising to the Permanent Establishment.

A reduced rate of 15% applies to newly incorporated entities set up on or after 1st January 2015.  This preferential rate applies to the first two years of operation providing a taxable profit arose in the first tax period.

 

This start up rate of 15% does not apply in the following situations:

  1. Where the trade/business was carried on previously by a related entity.
  2.  Where the newly created company belongs to a Group of Companies.
  3.  Where the company is considered, by law, to be an equity company.

 

For new companies set up prior to 1st January 2015 they will be taxed at 15% on their tax base up to €300,000 with 20% tax being levied on any excess amounts.  This will apply for the first two tax periods.

 

Without a Permanent Establishment

When dealing with non-residents operating in Spain without a permanent establishment, but who are resident in another EU or EEA state with which there is an Information Exchange Agreement in place, a distinction should be made between an individual and a corporate entity.

The tax rate applicable in the above situation is 19% and the tax deductible expenses are calculated in line with Personal Income Tax and Corporate Income Tax legislation.

 

In all other situations, the general rule is that non-residents operating in Spain without a permanent establishment are taxable at a rate of 24%.

 

 

Capital Duty

A 1% Capital Duty is payable by the shareholders on the dissolution of a company or on a reduction in its share capital.

 

 

Dividends, Interest and Royalties

 Dividends paid to non-residents are liable to a 19% Withholding Tax unless a lower rate applies under a relevant Double Taxation Agreement.

It is also possible for an exemption to apply under the EU Parent Subsidiary Directive.  Distributions paid to E.U. parent companies by Spanish subsidiaries are exempt from withholding tax provided the parent company held, either directly or indirectly, at least a 5% holding in the subsidiary company for a continuous period of twelve months in addition to satisfying other conditions.

Anti-Avoidance legislation exists where the ultimate shareholder in not E.U. resident.

Following an amendment in the Spanish Personal Income Tax Legislation, a share premium distribution paid to a non-resident shareholder may now be treated as a dividend distribution liable to withholding tax under the general rules.

Interest paid to a non-resident including a non-resident individual is liable to 19% withholding tax unless a lower rate applies under the relevant Double Taxation Treaty.

Interest income is exempt from tax if the recipient is a resident of an E.U. member state or an E.U. Permanent Establishment of an E.U. resident company which is not deemed to be a tax haven.

Royalties paid to non-residents including a non-resident individual are liable to withholding tax of 24% or 19% if the recipient is resident in an EU or EEA member state where an Information Exchange Agreement exists.

 

This rate can be reduced by the provisions of a relevant Tax Treaty.

 

Royalties paid to associated EU resident companies or permanent establishments are exempt from tax in Spain providing certain conditions are satisfied.

 

 

Capital Gains

Under Spanish law capital gains are treated as ordinary business income taxable at the 25% corporate tax rate.

Capital gains on disposals by non-residents without a permanent establishment in Spain are taxed at a reduced rate of 19%.

Where non-residents without a permanent establishment dispose of real estate situated in Spain, a tax of 3% will be withheld from the sales price by the purchaser and paid over to the Spanish Tax Authorities to be offset against the vendor’s tax liability.

Capital Gains from the transfer of shareholdings/ownership interests in Spanish companies and foreign subsidiaries by corporate entities are exempt from tax if the conditions of Participation Exemption are satisfied.

For an E.U. corporate shareholder, ownership of at least 5% must be held directly or indirectly or the shareholding must be valued at over €20 million and it must be held for at least a twelve month period.

In situations where the company is non-resident, a foreign tax which is similar to Spanish Corporate Income Tax of 10% will apply providing the corporate entity is resident in a country with which Spain has concluded a Double Taxation Agreement.

 

VAT

Spanish VAT or IVA is charged on the supplies of goods and services within the Spanish VAT territory as well as on imports and intra-EU acquisitions of goods and services.

IVA is charged at 21% on the majority of goods and services in Spain.

There is a reduced rate of 10% which applies to certain goods and services such as the purchase of a newly built property, passenger travel, health products and equipment, toll roads, refuse collection and treatment, entrance to cultural buildings and events, some foodstuffs, water supplies, renovation and repair of private dwellings, agricultural supplies, hotel accommodation, restaurant services, etc.

There is a super reduced rate of 4% which applies to the basic necessities other than those classified under the 10% rate and these include human medicine, basic foodstuffs (i.e. bread, milk, cheese, eggs, fruit, vegetables, cereals, potatoes, etc.), books, newspapers and magazines except the electronic equivalents.

 

Sales Tax is applied in Ceuta and Melilla instead of VAT.

 

The Canary Island Indirect Tax or IGIC applies in the Canary Island instead of VAT.

 

The ordinary rate of IGIC is 7% but there are a range of other rates: 0%, 3%, 9½%, 13½% and 20%.

 

 

CHANGES TO VAT RULES

On 1st July 2017 a new “Immediate Supply of Information” system took effect in Spain.

This new VAT management system now requires taxpayers to maintain their VAT books and records through the Spanish Tax Authorities website on a near real-time basis.

This new system is mandatory for all taxpayers who file their VAT Returns on a monthly basis including:

  • Companies included in the VAT Grouping Special Regime.
  • Large organisations whose annual turnover exceeds €6 million.
  • Taxpayers registered on the VAT Monthly Refund  Registry (REDEME)

 

This new system, however, also enables Taxpayers to elect to use the S.I.I.  If they voluntarily choose to use this system then they must declare their intention on Form 036.

 

Revenue eBriefs since 1st January 2017

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Are you aware of how much has changed since 1st January 2017 in terms of Tax compliance, Tax Credits, Employee Subsistence Expenses, Personal Tax, Corporation Tax, Capital Acquisitions Tax, Capital Gains Tax, Value Added Tax, PAYE, Stamp Duty, Transfer Pricing, Local Property Tax, Revenue Audit Procedures, etc.?

 

Here are a list of the Revenue eBriefs published so far this year:

 

  1. Revenue eBrief No. 01/17  Finance Act 2016 – VAT Notes for Guidance
  2. Revenue eBrief No. 02/17 Improved online services for PAYE customers
  3. Revenue eBrief No. 03/17 Stamp duty levies – changes made by Finance Act 2016 and Health Insurance Amendment Act 2016
  4. Revenue eBrief No. 04/17  Finance Act 2016 changes to Capital Acquisitions Tax Consolidation Act 2003 – Changes to section 86 (Dwelling House Exemption) and Schedule 2 (Group Thresholds) CATCA 2003 
  5. Revenue eBrief No. 05/17  Fisher Tax Credit 
  6. Revenue eBrief No. 06/17  Special Assignee Relief Programme
  7. Revenue eBrief No. 07/17  Deduction for statutory registration fees paid to the Health and Social Care Professionals Council
  8. Revenue eBrief No. 08/17  Revenue Opinions and Confirmations 
  9. Revenue eBrief No. 09/17  Tax Relief on Retirement for Certain Income of Certain Sportspersons 
  10. Revenue eBrief No. 10/17  Irish Real Estate Fund declarations
  11. Revenue eBrief No. 11/17  Average Market Mid-Closing Exchange Rates v Euro – Lloyds Conversion Rate
  12. Revenue eBrief No. 12/17  Revenue Arrangements for Implementing EU and OECD Exchange of Information Requirements In Respect of Tax Rulings
  13. Revenue eBrief No. 13/17  PAYE – Exclusion Orders
  14. Revenue eBrief No. 14/17 –  Taxation of Paternity Benefit
  15. Revenue eBrief No. 15/17  Deduction for income earned in certain foreign states (Foreign Earnings Deduction) 
  16. Revenue eBrief No. 16/17  Revenue Technical Service – Solicitor Access to the MyEnquiries online contact facility 
  17. Revenue eBrief No. 17/17  R and D tax credit claims in respect of projects supported by Enterprise Ireland R and D grants
  18. Revenue eBrief No. 18/17  Updates to the Electronic Relevant Contracts Tax (eRCT) System – Look up Payment Notifications
  19. Revenue eBrief No. 19/17  Revenue seeks applications for independent Research & Development (R&D) experts
  20. Revenue eBrief No. 20/17  Solvency II – EU (Insurance and Reinsurance) Regulations 2015 
  21. Revenue eBrief No. 21/17  Opticians in employment 
  22. Revenue eBrief No. 22/17  Securitisation: Notification of “Qualifying Company” Section 110 Taxes Consolidation Act, 1997.
  23. Revenue eBrief No. 23/17  Code of Practice for Revenue Audit and other Compliance Interventions
  24. Revenue eBrief No. 24/17  Health Expenses / Assistance Dogs
  25. Revenue eBrief No. 25/17  Non Principal Private Residence (NPPR) Charge
  26. Revenue eBrief No. 26/17  Irish Real Estate Fund declarations
  27. Revenue eBrief No. 27/17  Certification of Residence for Individuals/Companies/Funds
  28. Revenue eBrief No. 28/17  CGT implications for individuals of takeover of Fyffes plc by Sumitomo Corporation
  29. Revenue eBrief No. 29/17  PAYE Modernisation – Report on Public Consultation Process
  30. Revenue eBrief No. 30/17  Non Principal Private Residence charge notification facility
  31. Revenue eBrief No. 31/17  Home Renovation Incentive (HRI)
  32. Revenue eBrief No. 32/17  Help To Buy Scheme
  33. Revenue eBrief No. 33/17  Section 900 Taxes Consolidation Act 1997 – Power to call for the production of books, information etc.
  34. Revenue eBrief No. 34/17  Charitable Donations Scheme
  35. Revenue eBrief No. 35/17  Revenue Technical Service (RTS) for Agents and Taxpayers
  36. Revenue eBrief No. 36/17  Large Cases Division: Opinions/Confirmation on Tax/Duty Consequences of a Proposed Course of Action
  37. Revenue eBrief No. 37/17  VAT treatment of education and vocational training
  38. Revenue eBrief No. 38/17  ROS – Extension of Pay & File Deadline for ROS Customers for 2017
  39. Revenue eBrief No. 39/17  Corporation Tax (CT1) Returns for 2016 and 2017, Forms 46G (Company)
  40. Revenue eBrief No. 40/17  Offshore funds regime
  41. Revenue eBrief No. 41/17 Incapacitated Child Tax Credit
  42. Revenue eBrief No. 42/17  MyEnquiries enhancements
  43. Revenue eBrief No. 43/17  Exemption in respect of certain expense payments for resident relevant directors
  44. Revenue eBrief No. 44/17  Definition of ‘chargeable person’ – Self Assessment
  45. Revenue eBrief No. 45/17  Employees’ Subsistence Expenses and Motoring and Bicycle Expenses
  46. Revenue eBrief No. 46/17  Underpayment of Preliminary Corporation Tax: waiver of interest where the underpayment arises solely due to movements in the exchange rate of the functional currency
  47. Revenue eBrief No. 47/2017  Pre self-assessment – stamp duty manual
  48. Revenue eBrief No. 48/17  Taxation of exam setters, exam correctors, invigilators, etc.
  49. Revenue eBrief No. 49/17  Tax treatment of the reimbursement of Expenses and Travel and Subsistence to Office Holders and Employees
  50. Revenue eBrief No. 50/17  Returns Compliance Income Tax and Corporation Tax
  51. Revenue eBrief No. 51/17  Local property tax appeals
  52. Revenue eBrief No. 52/17  Company reconstructions without change of ownership (Section 400 TCA 1997)
  53. Revenue eBrief No. 53/17  Restructured VAT Tax and Duty Manual
  54. Revenue eBrief No. 54/17  Full self-assessment: Time limits for making enquiries and making or amending assessments
  55. Revenue eBrief No. 55/17  Surcharge on certain undistributed income of close companies
  56. Revenue eBrief No. 56/17  Charges on income for Corporation Tax purposes
  57. Revenue eBrief No. 57/17 Time limits for raising assessments and making enquiries – section 955 TCA 1997
  58. Revenue eBrief No. 58/17  Filing and paying Stamp Duty on Instruments
  59. Revenue eBrief No. 59/17  Capital Acquisitions Tax – Business Relief
  60. Revenue eBrief No. 60/17  Pensions Manual Amended
  61. Revenue eBrief No. 61/17  PAYE Taxpayers and Self-Assessment – Interaction of PAYE and Self-Assessment Procedures: Income Tax
  62. Revenue eBrief No. 62/17  Company Incorporation – Economic Activity
  63. Revenue eBrief No. 63/17  Tax-Geared Penalties for Non-Submission of Returns
  64. Revenue eBrief No. 64/17  Tax treatment of certain dividends
  65. Revenue eBrief No. 65/17  Full self-assessment – Revenue assessment in the absence of a return
  66. Revenue eBrief No. 66/17  New PAYE Services and ROS registration changes
  67. Revenue eBrief No. 67/17  Data Retention Policy for Compliance Interventions
  68. Revenue eBrief No. 68/17  Provisions Relating to Residence of Individuals
  69. Revenue eBrief No. 69/17  Guidelines on tax consequences of receivership and mortgagee in possession (MIP)
  70. Revenue eBrief No. 70/17  Irish Real Estate Funds
  71. Revenue eBrief No. 71/17  ROS Form 11 – 2016 income tax return
  72. Revenue eBrief No. 72/17  Guide to Exchange of Information under Council Directive 2011/16/EU, Ireland’s Double Taxation Agreements and Tax Information Exchange Agreements and the OECD/Council of Europe Convention on Mutual Administrative Assistance in Tax Matters.
  73. eBrief No. 73/17  Guidelines for requesting Mutual Agreement Procedure (MAP) assistance in Ireland
  74. Revenue eBrief No. 74/17  Transfer Pricing Documentation Obligations
  75. Revenue eBrief No. 75/17  Tax Treatment of Members of the European Parliament
  76. Revenue eBrief No. 76/17  ROS – Digital Certificate Renewal reminder notices
  77. Revenue eBrief No. 77/17  Corporation Tax Statement of Particulars – Section 882 TCA 1997
  78. Revenue eBrief No. 78/17  Accessing Schedule E information – 2016 Income Tax Return