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39 1997

TAXES CONSOLIDATION ACT, 1997

PART 35

Double Taxation Relief

CHAPTER 1

Principal reliefs

Agreements for relief from double taxation.

[ITA67 s361; FA74 s86 and Sch2 PtI; CTA76 s22(2), s23(1) and s166(1) and Sch4 PtI; FA83 s47(4)]

826. —(1) Where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to affording relief from double taxation in respect of—

(a) income tax;

(b) corporation tax in respect of income and chargeable gains;

(c) any taxes of a similar character imposed by the laws of the State or by the laws of that territory; and that it is expedient that those arrangements should have the force of law, then, subject to this section and sections 168 and 833 to 835 , the arrangements shall, notwithstanding any enactment other than section 168 , have the force of law.

(2) Schedule 24 shall apply where arrangements which have the force of law by virtue of this section provide that tax payable under the laws of the territory concerned shall be allowed as a credit against tax payable in the State.

(3) Any arrangements to which the force of law is given under this section may include provision for relief from tax for periods before the passing of this Act or before the making of the arrangements and provisions as to income or chargeable gains which is or are not subject to double taxation, and subsections (1) and (2) shall apply accordingly.

(4) For the purposes of subsection (1), arrangements made with the head of a foreign state shall be regarded as made with the government of that state.

(5) Any order made under this section may be revoked by a subsequent order, and any such revoking order may contain such transitional provisions as appear to the Government to be necessary or expedient.

(6) Where an order is proposed to be made under this section, a draft of the order shall be laid before Dáil Éireann and the order shall not be made until a resolution approving of the draft has been passed by Dáil Éireann.

(7) Where any arrangements have the force of law by virtue of this section, the obligation as to secrecy imposed by any enactment shall not prevent the Revenue Commissioners or any authorised officer of the Revenue Commissioners from disclosing to any authorised officer of the government with which the arrangements are made such information as is required to be disclosed under the arrangements.

(8) The necessary apportionments as respects corporation tax shall be made where arrangements having the force of law by virtue of this section apply to the unexpired portion of an accounting period current at a date specified by the arrangements, and any such apportionment shall be made in proportion to the number of months or fractions of months in the part of the relevant accounting period before that date and in the remaining part of the relevant accounting period respectively.

(9) The Revenue Commissioners may from time to time make regulations generally for carrying out the provisions of this section or any arrangements having the force of law under this section and may in particular, but without prejudice to the generality of the foregoing, by those regulations provide—

(a) for securing that relief from taxation imposed by the laws of the territory to which any such arrangements relate does not enure to the benefit of persons not entitled to such relief, and

(b) for authorising, in cases where tax deductible from any periodical payment has, in order to comply with any such arrangements, not been deducted and it is discovered that the arrangements do not apply to that payment, the recovery of the tax by assessment on the person entitled to the payment or by deduction from subsequent payments.

Application to corporation tax of arrangements made in relation to corporation profits tax under old law.

[CTA76 s22(1) and s23(1)]

827. —Subject to any express amendments made by the Corporation Tax Acts and except in so far as arrangements made on or after the 31st day of March, 1976, provide otherwise, any arrangements made under section 361 of the Income Tax Act, 1967 , or any earlier enactment corresponding to that section, in relation to corporation profits tax shall apply in relation to corporation tax and income and chargeable gains chargeable to corporation tax as they are expressed to apply in relation to corporation profits tax and profits chargeable to corporation profits tax, and not as they apply in relation to income tax; but this section shall not affect the operation, as they apply to corporation tax, of section 826 (7) and paragraph 12 of Schedule 24 .

Capital gains tax: double taxation relief.

[CGTA75 s38, s51(1) and Sch1 PtI par3(6); FA97 s146(1) and Sch9 PtI par 9(3)]

828. —(1) For the purposes of giving relief from double taxation in relation to capital gains tax charged under the law of any country outside the State, in section 826 and Schedule 24 as they apply for the purposes of income tax, for references to income there shall be substituted references to chargeable gains, for references to the Income Tax Acts there shall be substituted references to the Capital Gains Tax Acts and for references to income tax there shall be substituted references to capital gains tax meaning, as the context may require, tax charged under the law of the State or tax charged under the law of a country outside the State.

(2) In so far as capital gains tax charged under the law of a country outside the State may by virtue of this section be taken into account under section 826 and Schedule 24 as applied by this section, that tax, whether relief is given by virtue of this section in respect of it or not, shall not be taken into account for the purposes of those provisions as they apply apart from this section.

(3) Section 826 (7) shall apply in relation to capital gains tax as it applies in relation to income tax.

(4) Subject to subsections (1) to (3) and the other provisions of the Capital Gains Tax Acts relating to double taxation, the tax chargeable under the law of any country outside the State on the disposal of an asset which is borne by the person making the disposal shall be allowable as a deduction in the computation under Chapter 2 of Part 19 of the gain accruing on the disposal.

Treatment for double taxation relief purposes of foreign tax incentive reliefs.

[FA70 s57(2) to (4); CTA76 s166(1) and Sch4 PtI]

829. —(1) This section shall apply to any relief given with a view to promoting industrial, commercial, scientific, educational or other development in a territory outside the State.

(2) For the purposes of section 826 and Schedule 24 , any amount of tax under the law of a territory outside the State which would have been payable but for a relief to which this section applies given under that law (being a relief with respect to which provision is made in arrangements for double taxation relief which are the subject of an order under section 826 (1)) shall be treated as having been payable, and references in section 826 and in Schedule 24 to double taxation, tax payable or chargeable or tax not chargeable directly or by deduction shall be construed accordingly.

(3) The Revenue Commissioners may make regulations generally for carrying out the provisions of this section or any arrangements having the force of law under section 826 and may in particular, but without prejudice to the generality of the foregoing, provide in the regulations—

(a) for the purposes of this section or of the regulations, for the application (with or without modifications) of any provision of the Tax Acts or any regulations made under those Acts, including the provisions relating to the rehearing of an appeal and to the statement of a case for the opinion of the High Court on a point of law, and

(b) that the whole or any part of a dividend paid out of profits or gains which consist of or include profits or gains in relation to which double taxation relief is given by virtue of this section is not to be regarded as income or profits for any purpose of the Tax Acts.