State stocks anti-evasion armoury

After the positive news for taxpayers of the Budget tax reductions, the Finance Bill shows the State returning to form with a…

After the positive news for taxpayers of the Budget tax reductions, the Finance Bill shows the State returning to form with a replenished armoury of anti-avoidance stratagems, in a Bill running to 113 sections and nine schedules. So what of the implications for Irish business? The main interest will be in measures brought forward in the Bill which have not previously been announced or detailed.

Over coming months the Irish corporate sector in particular will be focusing more on the consequences of EMU introduction. The Bill brings forward several technical measures to deal with the transition. Two of them are designed to remove possible opportunities for avoiding capital gains tax liabilities on the transition to the euro.

At present, a deutschmark-denominated deposit account, for instance, is a chargeable asset because it is denominated in a foreign currency. Assuming Germany and Ireland enter EMU, under current rules the deutschmark deposit might cease to be chargeable, so that any gain which had been accrued up to the date of transition to the euro would never be subjected to capital gains tax.

A provision has been introduced which will deem a disposal to have taken place on the date of entry into EMU, but the tax payable will be deferred until the deposit is actually uplifted. A separate technical provision for the computation of capital gains has been introduced. Where a chargeable asset had been bought in a currency which actually enters EMU and is sold after the date of entry, the provision will have the effect of capturing gains which had accrued to the date of transition but which might not, under existing rules, have fallen into charge subsequently.

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VAT is a significant tax for any business and its rules are quite detailed and technical. Sometimes, traders get it wrong and find they have overpaid tax. Meanwhile, under the mistaken interpretation, they may have levied excessive VAT on their customers.

If a trader, in this situation, subsequently makes a claim for repayment of VAT overpaid, Revenue may object on the basis that the refund to a trader who would find it impractical to reimburse his customers would give rise to "unjust enrichment".

The Finance Bill proposes a measure which would justify Revenue in withholding repayments of VAT where they consider that unjust enrichment would occur.

Another turn of the VAT screw is the proposal to reduce from 10 to six years the limit within which a claim for a VAT refund may be made. However, there is a quid pro quo because Revenue's power to make estimated assessments for back years is also reduced from 10 to six years.

Traders who operate in a sole capacity or in partnerships, as opposed to companies, are subject to special rules of assessment in the commencement years of business.

Under existing rules it was possible that, by choosing one particular accounting date some part of the trading profits of the commencement years could escape a charge to tax. This opportunity is being closed off by a revision of the rules governing the second year of trading. This will provide that the trading profits of that second year, running from April 6th to April 5th, will be taxable in full in all cases.

Sole traders and members of partnerships will be adversely affected by new rules which stipulate that tax returns must be returned by November 30th, two months earlier than before. However, the preliminary tax payment deadline is being moved from November 1st to November 30th.

All in all, the Revenue may well feel pleased with itself. The return should be significant from the 1998 Bill.