J.W. O’Donovan hosts the ADVOC Europe Open Board Meeting

Members from ADVOC, the leading international network of independent law firms, enjoyed a taste of Cork culture as they met in the city last weekend for the Advoc Europe Open Board Meeting, an international legal conference, which ran from the 21st – 23rd September and was hosted by J.W. O’Donovan. The conference was attended by ADVOC members from England, Cyprus, Hungary, The Netherlands, Germany, France, Spain, Italy and Switzerland.

The ADVOC network, founded in 1990 and headquartered in London, facilitates business development, support services, and networking among its 93 members, which hail from 72 countries worldwide. J.W. O’Donovan was the first Irish law firm to join the network in 1994.

Jerome O’Sullivan of J.W. O’Donovan commented,

A great benefit of being part of such a diverse and wide-ranging network of people and knowledge is that it has enabled us access to global legal support from firms that are leaders in their jurisdiction. In effect, it creates a virtual law firm of over 5,500 lawyers. Having access to that network and level of expertise has been invaluable for us as a firm.”

The conference, which opened on Friday night, also coincided with Culture Night, the national celebration of culture held in cities and town around the country.

Jerome commented,

“Not only were we delighted to host this year’s event in our fantastic city, but that it coincided with our annual celebration of Cork Culture was fortuitous coincidence. It was a privilege and a pleasure to have the opportunity to show our member delegates just what Cork City has to offer, in terms of the arts, food, entertainment and atmosphere.”

The conference continued on Saturday morning with meetings for delegates in the Imperial Hotel on South Mall, before moving onto visits of some of Cork’s main attractions including Blarney Castle and a walking tour of the city. The main conference dinner took place in the Crawford Art Gallery.

“The feedback from delegates of this year’s conference was very positive, particularly in response to Cork’s cultural and historical offering. We wanted our European partners to enjoy the city at its best, to take a stroll around after dinner in the evenings and soak up the friendly, warm atmosphere that Cork is known for.”

Jerome O’Sullivan Managing Partner at J.W O’Donovan Solicitors welcoming Garry Mackey Chairman of ADVOC.

Have you Filed your Annual Returns?

Have you Filed your Annual Returns?
There can be very costly consequences both for a company and for directors of a company that fail to file their annual returns on time. The Companies Registration Office (CRO) is the body charged with enforcing compliance with the Companies Act 2014 and it takes the matter of filing annual returns very seriously. The financial consequences for failing to file on time include late filing fees and penalties, on the spot fines and the loss of audit exemption for a company’s accounts. In some situations non-compliance may eventually result in the striking-off of the company and the criminal prosecution of companies and of directors.

The Obligation to File Annual Returns
Section 343 of the Companies Act 2014 states the following:
S343 (2)
Subject to the provisions of this section, a company shall deliver to the Registrar an annual return in accordance with subsection (4) not later than 28 days after the annual return date of the company.

S343 (3)
However, if the annual return is made up to an earlier date than the company’s annual return date, it shall be so delivered not later than 28 days after that earlier date.

S343 (4)
An annual return of a company shall—
(a) be in the prescribed form and contain the prescribed information, and
(b) be made up to a date that is not later than its annual return date,
except that the first annual return falling to be made by a company after it is incorporated shall be made up to the date that is its first annual return date.

So what are the Possible Penalties for Late Filing?

1. Late filing fees
Annual returns which are filed late with the CRO incur a late filing penalty of €100 with effect from the expiry of the company’s filing deadline, with a daily penalty of €3 accruing thereafter, up to a maximum of €1,200 per return.

2. On the Spot fines
The registrar may issue on the spot fines which must be paid within 21 days.

3. Loss of Audit Exemption
Lost of an Audit Exemption will attach to the defaulting company’s accounts for two years which is sure to mean an unwelcome increase in costs for the company.

4. Involuntary Strike-Off Proceedings
In more severe cases, the CRO may decide to bring proceedings to strike-off the offending company.

Criminal Prosecution & Disqualification

Section 343 of the Companies Act 2014 states that companies and directors of companies may be prosecuted for failure to file an annual return. A director who has received three such convictions may be disqualified from acting as director, or having any involvement in the management, of any company.
The Companies Registration Office (CRO) justifies the seriousness of its approach in the following terms:
‘Incorporating a company and availing of limited liability brings with it serious legal obligations, one of which is the filing of prompt and accurate annual returns with the CRO. Failure to file an annual return is a serious matter, the company and any of its officers who are in default shall be guilty of a criminal offence.’

Section 343 (5) – District Court Application to Extend Time
Up until recently the only recourse available was to proceed with a very expensive High Court application. Thankfully, things have changed. Section 343 (5) of the Companies Act 2014 introduced an application to extend time to file annual returns to take place in the District Court where the legal costs for the company are very much reduced.

S343 (5)
The court, on an application made (on notice to the Registrar) by a company, may, if it is satisfied that it would be just to do so, make an order extending the time for the purposes of subsection (2) or (3) in which the annual return of the company in relation to a particular period may be delivered to the Registrar; only one such order may be made as respects the particular period to which the return concerned of the company relates.

Requirements
The CRO must be given at least 21 days’ notice of the application and the court date and an Affidavit must be sworn by one of the Officers of the company explaining the reason as to why the accounts were not filed on time. On receipt of the notice and Affidavit, the CRO will respond with a letter either consenting or objecting to the application. If the CRO are objecting, then a representative of the CRO may attend at court. In such a scenario the District Court Judge may hear evidence from both the CRO and the company representative before deciding whether or not to grant the application to allow for an extension of time. If the application is successful then the Annual Returns will need to be filed within a period (usually 28 days) of the court date. Once this is done on time, all of the above penalties are avoided.

From more information please contact Neal Horgan.

Email: nhorgan@jwod.ie
Tel No: +353 21 7300200

Practice Areas:

 

Seven Step Project Plan to achieve GDPR compliance

John Fuller, solicitor in our Corporate and Commercial Department, has recently published an article setting out a seven step plan to assist in GDPR compliance.  The full article as published on BusinessandFinance.com can be accessed through the link below.

Seven Step Project Plan to achieve GDPR compliance

The deadline for implementation of the new rules is very fast approaching and we would advise everyone who has not started their planning and compliance process to start now.  If you need advice or assistance in relation to your own GDPR compliance plans please contact us.

The Mediation Act 2017

The Mediation Act 2017 (“the Act”) commenced into law on 1 January 2018.

What does the Act seek to achieve?

Mediation has long since been used as a mechanism for dispute resolution within the Irish jurisdiction and the Act contains provisions for a statutory framework to promote and regulate the resolution of disputes through mediation.

The Act introduces a new obligation on solicitors, prior to the issue of proceedings, to advise their clients to consider mediation as a means of resolving their dispute and to provide their client with general information in relation to mediation services, including names of individuals who provide mediation services.

The obligation will apply to all litigation disputes, aside from a number of specific areas set out in the Act including, for example, certain employment law disputes, certain taxation matters and cases against the State concerning breach of fundamental rights.

The underlying objective of the Act is to promote mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and reducing the stress and uncertainty which regularly accompanies court proceedings.

What is Mediation?

The Act defines mediation as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”.

 The process is entirely consensual and the Act provides that participation “shall be voluntary at all times”. Further once a party has engaged in the process, he/she may withdraw at any time. A mediator’s fee may not be contingent on the outcome of mediation.

Prior to commencement of mediation, the mediator is obliged to:

  • ensure that he/she does not have an actual or potential conflict of interest;
  • furnish the parties details of his/her qualifications and with a copy of any Code of Practice published       and approved under the Act to which he/she subscribes.

Throughout the mediation process the mediator is obliged to:

  • act with impartiality and integrity and to “treat the parties fairly”.
  • complete the mediation expeditiously; and
  • ensure that the parties are aware of their rights to obtain independent advice (including legal                 advice) prior to signing any mediation settlement.

Confidentiality is dealt with in particular by the Act, and it provides that all communications and all records and notes relating to the mediation “shall be confidential and shall not be disclosed in any proceedings before a Court or otherwise”. The foregoing does not apply to documents where the disclosure might be necessary for example in the enforcement of a mediation settlement.

Limitation periods

The Act extends limitation periods by the period commencing on the day on which the agreement to mediate is signed (presumably meaning the date on which all parties have executed) and ending on the day which is thirty days after either a mediation settlement is executed or the mediation is terminated. The mediator is obliged to inform the parties in writing of the date on which the mediation ends.

Legal proceedings

The Act promotes the use of mediation as an alternative means of dispute resolution to court proceedings.

In all cases,  prior to issue of the proceedings,  a Statutory Declaration must be made by the solicitor evidencing that the solicitor has performed the obligations imposed under the Act and where such Statutory Declaration has not been completed, the Court “shall adjourn the proceedings” pending compliance. Certain legislation governing children and Judicial Separation/Divorce are excluded from this provision.

Court

Part 4 of the Act deals with the role of the Court in mediation. Section 16 provides that a Court may, on the application of a party or on its own motion, invite the parties to consider mediation and provide the parties with information about the benefits of mediation.

Following an invitation by the Court where the parties decide to engage in mediation the Court may:

  • adjourn the proceedings;
  • make an Order extending the time for compliance by a party with Rules of Court or with any Order         of the Court; or
  • make such other Order or direction as is necessary to facilitate the effective use of Mediation.

These statutory rights are conferred without prejudice to any other discretionary power which the Court may exercise with a view to facilitating the resolution of a dispute.

Section 17 provides that where an invitation by the Court to the parties under Section 16 has occurred, the mediator must prepare and file with the Court a written report setting out why the mediation did not take place, or where the mediation took place a statement as to whether or not a mediation settlement was reached and if the mediation settlement has been reached on all or some only of the matters a statement of the terms of the mediation settlement. The mediator is obliged to furnish such a report to the parties at least seven days prior to its filing.

This is a most curious provision and conflicts with the confidential nature of mediation. Perhaps the message to be taken from this part of the Act is that the parties themselves engage in the process without intervention by the Court under Section 16.

Enforcement

With regard to enforcement, the Act provides that a mediation settlement “shall have effect as a contract between the parties to the settlement” save where it is expressly stated to have no legal force until incorporated into a formal agreement. This of course does no more than recognise the position of all compromises in so far as they are contractual in nature.

Mediator’s fees

The Act provides that the fees and costs of the mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator.

In awarding costs in circumstances where the Court invited the parties to consider mediation, the Court may take into account factors including any unreasonable refusal or failure by a party to consider/attend mediation following an invitation to do so under Section 16(1).

Comment

The Act is a welcome development in the area of dispute resolution. Mediation has been successfully used for dispute resolution for many years in Ireland and has become increasingly common in recent years. The Act reinforces and supports the process.  It preserves the core aspects of mediation a confidential, facilitative and voluntary process in which parties attempt to reach a mutually acceptable agreement.

 

 

 

 

 

Cormac O’Hanlon

Partner

Cormac has practised throughout his career in the fields of commercial law, litigation and dispute resolution. He is former chairman of the Business Law Committee of the Law Society and a former President of the Southern Law Association. Cormac is a CEDR Accredited Mediator and a member of the New York Bar Association.

Email: cohanlon@jwod.ie

Phone: +353 21 7300200

 

 

 

 

 

Karol-Ann Randles

Associate

Karol-Ann is an associate solicitor with J.W. O’Donovan having joined the firm as a trainee in 2008, and qualifying in 2010.  She practises in the areas of Litigation and Dispute Resolution,  and Employment Law with a particular emphasis on public liability, employer’s liability and product liability claims, across a variety of industries and at all court levels.

Email: krandles@jwod.ie

Phone: +353 21 7300200

 

UPDATE ON STAMP DUTY CHANGES IN FINANCE BILL 2017

UPDATE ON STAMP DUTY CHANGES IN FINANCE BILL 2017

Transitional Arrangements relating to Commercial Property

The most significant change to Stamp Duty announced in the Budget Speech was the increase in the rate applicable to commercial property from 2% to 6%. The transitional arrangements applicable have been clarified on publication of the Finance Bill.  There were some fears immediately following the Minister’s speech that the higher rate of duty would apply even where binding contracts to purchase had been signed prior to the Budget.  This would have been a departure from the practice in previous years where the pre-Budget rate of duty had continued to apply to such transactions.  It would also have had a penal effect on purchasers who had committed to buying commercial property but would now be facing unanticipated increases in purchase costs. The Finance Bill has now confirmed that the 2% rate of duty will continue to apply where a binding contract was entered into prior to midnight on 11 October 2017 provided the relevant instrument or deed transferring the property is executed before 1 January 2018.  The instrument or deed must contain a certificate confirming that a binding contract had been entered into prior to 11 October 2017.

Land purchased for residential development

The Minister stated in his Budget Speech that a Stamp Duty Rebate Scheme is to be introduced in relation to commercial land purchased for the development of housing where development commences on the land within 30 months of purchase.  The Finance Bill does not contain any details of this Scheme or how it will operate and it has been indicated that this will be introduced at the Committee stage of the Bill.

Transfers of Agricultural Land

The possible application of the increased rate of Stamp Duty to transfers of agricultural land caused a lot of unhappiness in the agricultural community.   While previously a reduced rate was applicable to the transfer of farms in families, this was subject to a requirement that the transferor was not aged over 67.  This upper age limit is to be removed, and such transfers will benefit from a fixed rate of 1%.  It would appear however that the removal of the upper age limit will not come into effect until the passing of the Finance Act.

Leases of commercial property

The Stamp Duty rate on leases of commercial property will continue to be charged at a rate of 1% on the average annual rent.  Where the landlord receives a premium from the tenant at lease commencement, this will be subject to Stamp Duty at the new 6% rate.

Transfers of Residential Property

The Stamp Duty on residential property remains unaffected by Budget 2018 and will continue to apply at a rate of 1% up to the first €1,000,000 with 2% payable on the excess over €1,000,000.

Leases of residential property

Short-term leases of residential property have not been subject to stamp duty unless the annual rent exceeded €30,000.  This threshold has now been increased to €40,000.

For further information contact:

Jerome O`Sullivan,

Head of Commercial Property

Email: josullivan@jwod.ie.

 

Patrick Bradley

Partner

Email: pbradley@jwod.ie

 

Ciara McDonnell

Partner

Email: cmcdonnell@jwod.ie

 

 

UCC IGNITE Awards

J.W. O’Donovan were delighted to once again sponsor and be part of the judging panel for this years UCC IGNITE programme awards.

The event celebrated the achievements of the 7th cohort of Recent Graduate Entrepreneurs who participated in the 12 month business incubation programme. Ten aspiring Recent Graduate Entrepreneurs, who have just commenced the programme, were also introduced on the night.

The awards judging panel comprised of Sean Byerley, Head of Bank of Ireland – Cork City; Rosscoe Deasy, Associate Director EY; and John Fuller, Associate Solicitor, J.W. O’Donovan.

Sean Byerley, Head of Bank of Ireland – Cork City, chair of the judging panel, praised the young companies, saying “The calibre of the business presentations this year was extremely high, and it’s very encouraging to see that a number of the start-ups we met are well on the road to success having already generated sales revenue or raised finance. Each of the start-ups that presented to the judging panel demonstrated true entrepreneurial spirit and steadfast determination; and each has the potential to develop a successful business.”

Top award winner ApisProtect helps commercial and amateur beekeepers, managing 81 million beehives globally who are losing up to 50% of their colonies each year by using in hive IoT enabled sensors, machine learning , and world class beekeeping knowledge to help them identify hive problems, diseases, and pests.

The JW O’Donovan Solicitors/IGNITE Innovation Award was presented to Kaushik Shanmugam of Lacidem, for the most innovative use of technology. Lacidem is a wearable technology company that provides solutions which enable hospitals to proactively monitor post-surgery/treatment cardiac patients remotely and predict abnormalities. Kaushik came up with the idea when he lost his friend who suffered a heart attack, which motivated him to find a solution to monitor patients outside hospitals efficiently.  Pictured below is John Fuller of our Corporate and Commercial team presenting the award to Kaushik Shanmugam.

The EY/ IGNITE Business Plan Award went to Conor Lyden of TrustAp, a new transaction platform that acts as a safety net for consumers when they’re buying and selling online. Trustap holds the buyer’s money until the transaction has completed and subsequently financial losses to consumers are eliminated.

Estate Agents and Negligent Misstatement

Estate Agents and Negligent Misstatement

Walsh v Jones Lang Lasalle Limited

With the return of confidence to the Irish property market, increased activity in purchasing and rising prices, it could be said that the Supreme Court has issued a timely reminder about the dangers of relying on information from estate agents which has been provided for promotional purposes.

The decision of Mr Justice O’Donnell in the case of Walsh v Jones Lang Lasalle Limited [2017] IESC 38 was handed down on the 1st of June 2017 and serves as a stark reminder of the pitfalls a purchaser can fall into when relying on information from a particular source, who does not assume liability for such statement.

Facts

In January 2007 the High Court awarded the plaintiff €350,000.00 in general damages for the loss he suffered by relying on details contained in a sales brochure prepared by the defendant estate agent.

The details, which the High Court found amounted to a misstatement, were such that it stated the property’s measurements were 23,057 sq. ft. with a site area of 0.31 Acres. At the end of the page there was a disclaimer stating:-

“Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.”

The measurement of the property was in fact 1,809 sq. ft. smaller than the sales brochure had stated, standing at 21,248 sq. ft. Only a survey as to the condition of the premises was carried out. The purchaser had made approximate calculations of £20.00 per square foot in his valuation and development plan.

The plaintiff purchaser claimed a significant loss due to the price paid, and the calculations he carried out on a price per square foot basis. The price paid in 2000 was £2.342m.

The High Court found in favour of the plaintiff purchaser by reasoning that there was a relationship between the purchaser and estate agent which was sufficiently proximate to give rise to a special relationship, which in turn satisfied the High Court legal test laid down in the case of Wildgust & Another v Bank of Ireland & Another [2006] 1 IR 570.

Supreme Court Decision

The Supreme Court in rejecting the finding of the High Court said that the test in Wildgust was not appropriate in all cases.

The Supreme Court more particularly said the statement on which the plaintiff purchaser relied, was generally available to anyone who wished to see it. In other words, the estate agent did not make this statement to just the plaintiff purchaser but rather to the world at large.

The Supreme Court found that this case came down to the allocation of risk – weighing up the interests of the estate agent to reasonably limit its liability versus assuming risk and charging substantially more in fees for its services.

The Supreme Court concluded by saying that if a purchaser has a particular interest in the square footage of a property, then they should contract for that, whether it be with the vendor, the vendor’s agent or his/her own expert.

Conclusion

This case illustrates the dangers in relying on information from a party who can reasonably limit their liability for a statement made by them. In such transactions, if a purchaser has a specific interest in the square footage, or other measurement, of a property then they need to contract with an appropriate party to provide a warranty for such information.

With the renewed activity in the Irish property market, this case shows the value and security that can be obtained in engaging the relevant expert and in turn allowing a purchaser to rely on an appropriate source of information.

J.W. O’Donovan advises Irish and International clients on an extensive range of property law matters. We offer services to large institutional and private investors, developers and major retailers in the Irish market. Our property service comprises three distinct practice areas – commercial property, construction and residential property.

Should you have any property related query, please do not hesitate to contact Jerome O’Sullivan the Head of our Property Department.

 

 

 

 

Jerome O’Sullivan
Head of Property

Email: josullivan@jwod.ie
Tel No: +353 21 7300200

Alzheimer’s Tea Day

We would like to thank everyone who attended at our office on Thursday 4th May to mark Alzheimer’s Tea Day in support of the Alzheimer’s Society.

Alzheimer’s Tea Day is the largest annual fundraising campaign in The Alzheimer Society of Ireland’s calendar. Since the very first Alzheimer’s Tea Day in 1994 over €7.5M has been raised to provide essential support to the 55,000 people living with dementia in Ireland today.

We are delighted to announce that we raised €1,165.70 for the Society and we thank you for your very generous contributions.

Landlord and Tenant Law Reform – Why the long wait?

How long does it take to get a progressive, important and relatively uncontroversial piece of legislation passed in this country?  One year, two years, three?  In the case of the Landlord & Tenant Law Reform Bill, the gestation period is currently running at almost 14 years, and counting.

In 2003 the Law Reform Commission (“LRC”) published a Consultation Paper on the General Law of Landlord and Tenant and invited submissions from interested parties.  This consultation process resulted in the publication by the LRC in 2007 of their Report on the Law of Landlord and Tenant to which was appended a draft Landlord and Tenant Bill. This draft bill proposed fundamental reforms of landlord and tenant law, particularly as it applies to business tenancies.

Anyone who has had to grapple with the vagaries of our landlord and tenant law, be they business owners, lawyers, surveyors or other professional advisers, knows that it is riddled with archaic rules and procedures that are entirely unsuited to the commercial realities of today.  The bill proposed by the LRC would get rid of most of these anachronisms once and for all, proposing as it does to repeal many pieces of outdated legislation dating from the Distress Act 1493 to the Landlord and Tenant (Amendment) Act 1989.  I don’t propose to go through everything that is contained in the bill but, suffice to say, it would bring about an extensive modernisation of many aspects of landlord and tenant law, such as the formalities required to create a tenancy, rent review procedures, and when and how tenancies may be terminated.  The legislation, if and when implemented, would have the effect of providing a much greater degree of certainty for both landlords and tenants as to their rights, entitlements and obligations in dealing with leased property.

So what has happened to this bill?  Four years after the LRC Report, the then Minister for Justice and Equality, Mr. Alan Shatter, published draft heads for the bill, commenting that “a modern landlord and tenant code applicable to business tenancies is essential for our economic recovery”.  He invited submissions on the proposed bill from interested parties prior to 31st May 2011.  Since then, it appears to have gone nowhere fast.

Some clues as to the importance attributed to this bill by our legislators can be gleaned from the Legislation Programmes issued by the Government at the beginning of each Dáil session.  For example, in the Legislation Programme for the Autumn Session 2013, this bill was listed in “Section B – Bills in respect of which heads have been agreed and texts are being drafted”.  We were told that publication was expected in late 2014.  In the programme for the Spring/Summer Sessions 2015, it was still in Section B, but publication was “not possible to indicate at this stage”.  In the programme for the current session of the Dáil, Spring/Summer 2017, the bill has been relegated to the third division, a section entitled “All Other Legislation”, and we were reassured that its status is “heads approved, work is continuing”!

Ireland’s pre-eminent landlord and tenant scholar, Professor J.C.W. Wylie, in the preface to the third edition of his book on Landlord and Tenant Law expresses “great sadness” at the lack of progress in implementing this bill.  In fact, Professor Wylie, who played an important role in the LRC process way back in 2003-2007, had delayed the latest edition of his work in the hope that the bill would be passed; eventually he decided he could wait no longer.

As mentioned earlier, there is nothing particularly controversial in this bill and it is difficult to understand why it has languished in some legislative limbo for so long, while the inadequacies of our current regime continue to have a negative impact on the business life of the country. At least part of the reason must be disinterest and indifference on the part of our legislators.  Most of the time, there is nothing vote-catching or headline-grabbing about landlord and tenant law, but it is noteworthy that one of the only recent changes in the law relating to business tenancies, the abolition of upward-only rent reviews, was hurriedly inserted as a last-minute addition to a largely unrelated statute in 2009, a time when the high level of commercial rents was a hot political issue.

So it seems we shouldn’t hold our breath waiting for anything to change in the near future. Or perhaps we should all, whether individually or through lobby groups, professional bodies and other groupings, try to bring some pressure to bear on our politicians to expedite this much-needed reform.

For further information please contact:

 

 

 

 

Jerome O’Sullivan
Managing Partner

Email: josullivan@jwod.ie
Tel No: +353 21 7300200

Special Purpose Vehicles and Unit Trusts & Offshore Funds Deriving Their Value from Irish Land

Special Purpose Vehicles

The Finance Act 2016 introduced significant changes in the tax treatment of Irish Special Purpose Vehicles (“SPV”) holding financial assets secured on Irish real estate and Irish Real Estate Funds (“IREF”)

SPV’s are companies that are set up to securitise qualifying assets including financial assets, commodities, plant and machinery. Section 110 of the Taxes Consolidation Act 1997 in effect provides that subject to certain conditions SPV’s can carry out their activities on a tax neutral basis thereby making a more attractive location for the provision of financial services.

Concerns arose that about the possible uses of Section 110 companies to avoid paying tax on Irish property transactions particularly in the context of distressed Irish property loans. As a result Section 22 of the Finance Act 2016 amended Section 11o to protect the Irish tax base.

The new section provides that subject to certain exceptions profits from Section 110 companies from financial assets (loans, shares, etc.) that derive their value, or the greater part of their value, directly or indirectly from land in Ireland will with effect from the 6th September 2016 be treated as a separate business (“specified property business”) in respect of which, subject to certain exceptions interest (other than interest on an arm’s length at a commercial rate not dependant on the Section 110 company’s profit) will no longer be deductible

It should be noted that the new section is designed to have no effect on SPVs used to acquire financial assets that do not derive the greater part of their value from Irish land, so these amendments should have no effect on the vast majority of SPVs which are recognised as an important component of Ireland’s offering as a financial centre.

Unit Trusts and Offshore Funds

Ireland, under its double tax treaties, retains its right to tax residents of the other Contracting State on gains realised on Irish real estate or assets deriving their value substantially from Irish real estate. Prior to the Finance Act 2016 Irish collective investments such as UCITS, authorised unit trusts, authorised investment companies, ICAVs and investment limited partnerships were not liable to tax on their income  or gains regardless the source of same or the residence of the investors.

Section 23 of the 2016 Act was introduced to protect the Irish tax base in respect of profits from Irish real estate and applies to Irish Real Estate Funds (“IREF”) being collective vehicles (other than UCITS) which derive at least 25% of their value from Irish real estate.

The section operates by obliging the IREF to apply a 20% withholding tax on certain Irish property distributions to non-resident investors (resident investors are already liable to an exit tax). It applies to distributions made on or after the 1st January 2017 regardless of the period to which the distribution relates. It also applies where a REIF holds shares in a company or a REIT that derives the greater part of its value from Irish real estate. Gains arising on the disposal of land to a party unconnected with the IREF or any of its investors are excluded from IREF profits for the purposes of the withholding tax, provided that the IREF has owned the land for at least five years.

The fund itself remains exempt from tax on its income and gains and payment of the withholding tax should satisfy the Irish tax obligations of the investor.

There are exemptions, subject to certain conditions for distributions to life assurance companies, other collective investment vehicles, credit unions and Section 110 companies.

The section is lengthy and complex containing detailed provisions in relation to what profits are subject to the tax, the circumstances giving rise to the to the charge, computational rules, the required returns and anti-avoidance.

For further information please contact:

Special Purpose Vehicles and Unit Trusts & Offshore Funds Deriving Their Value from Irish Land

 

 

 

 

 

Patrick Bradley
Partner

Email: pbradley@jwod.ie
Tel No: +353 21 7300200