Contents. vii. Table of Cases...xxix. Table of Statutes...xxxix

Transcription

1 Table of Cases...xxix Table of Statutes...xxxix Chapter 1 Introduction Introduction Charging Provision E-Stamping and Self Assessment Tax on Instruments Heads of Charge Territoriality Rate of Stamp Duty Exemption and Reliefs...3 Chapter 2 Documents A Tax on Documents Transactions Requiring a Written Instrument Evidencing a Transaction Time of Execution Instruments Relating to Separate Matters Instruments Containing Separate Transactions Principal Object Alteration of Instruments Several Instruments Constituting One Transaction Paperless Transactions Escrow E-Stamping...13 vii

2 Chapter 3 Heads of Charge Charge to Stamp Duty First Schedule Heads of Charge Heads of Charge and Categories Deleted by Finance Act Heads of Charge where Fixed Charge Duty Removed...20 Chapter 4 Territoriality Introduction Execution in the State Relates to any Property Situated in the State Location of Property Relates to any Matter or Thing Done or to be Done in the State Execution Abroad...26 Chapter 5 mandatory Tax and Professional Duties Introduction Accountable Person Time for Stamping Late Stamping Surcharges for Under-Valuations in Voluntary Dispositions Inter Vivos Surcharges for Incorrect Valuations of Residential Element in Conveyances or Leases of Mixed Residential and Non-Residential Property Incorrect Statements Power to Raise Assessments Collection of Stamp Duty Disclosure Requirements Sanctions for Breaching Disclosure Requirements Situations where Negligence or Deliberate Behaviour is Presumed...41 viii

3 5.13 Position of Professional Advisers Expressions of Doubt Power to Require Production of Information Stamp Duty Appeal Procedures Restrictions on Use in Evidence Duty of Judge, Arbitrator, etc Stamp Duty Objections Undertakings to Stamp Finality of Judge s Decision Lost Documents Stamping of Replacements Lost Documents Admissibility of Secondary Evidence Exceptions to Embargo on Admission of Unstamped Documents Position of Registrars Proof of Title Chapter 6 Contingent, Variable and Unascertainable Consideration Introduction Contingency Principle Application of the Contingency Principle Unascertainable Consideration in Conveyances on Sale Periodical Payments in Conveyances on Sale Non-Cash Consideration in Conveyances Conveyances in Consideration of the Transfer or Release of Debts Unascertainable and Non-Cash Consideration in Leases Stamp Duty and VAT Variation of Rent Chapter 7 Conveyances on Sale Conveyance Heads Conveyances, Deemed Conveyances and Mere Conveyances ix

4 7.3 On Sale Price in money Other components of sale Mutual assent Contract and Conveyance Conveyance Contract Contract Law Execution, Executed and Executory Executory Executed Significance of executed/executory Conveyance on Sale Liberal interpretation of conveyance Effect of the document is what matters Instruments regarded as conveyances on sale by revenue Agreements to transfer are not conveyances Elements of a Conveyance on Sale Every instrument Every decree or order (including a decree or order for, or having the effect of an order for, foreclosure) of any court or of any commissioners Whereby Agreement or contract to transfer Property Estate or interest in property Executory and executed Prior existence of property Transferring or vesting Purchaser, or any other person on his behalf Building Agreements Powers of Attorney Equitable Assignments Transaction Certificates Stamp Duty and VAT Examples of Conveyances on Sale x

5 Large and disparate range of instruments Conveyances Non-conveyances Chapter 8 Deemed Conveyances on Sale Conveyances and Agreements Deemed Conveyances on Sale Instruments that are not Conveyances Certain contracts to be treated as conveyances on sale Resting in contract Licences Agreements in connection with, or in contemplation of, sale Certain contracts for sale of leasehold interests to be chargeable as conveyances on sale Deeds of enlargement Surrenders Reverse Consideration for Surrenders Instruments that are not Sales Chapter Conveyance or transfer in contemplation of sale Voluntary dispositions inter vivos chargeable as conveyances or transfers on sale As to sale of an annuity or right not before in existence Partitions General Exchanges Shares etc. exchanged for other property Debt, etc., exchanged for other property Contracts Treated as Conveyances on Sale Conveyances and Agreements Executed and Executory Purpose of the Sections 31, 31A and 31B Provisions Effect of Section First limb equitable estate or interest Second limb full (legal and equitable) ownership Property excluded from second limb of section xi

6 9.5 The Relationship Between Section 1 and Section Section 1 definition of conveyance on sale Section 31 definition of conveyance on sale Mixed Transactions Deliberate misstatements regarding apportionment Subsequent Conveyance Further Contract Rescission Resting in Contract Licence Agreements Contracts Chapter 10 Stamp Duty on Leases Charge to Stamp Duty Under Lease Head Lease head applies on creation only Leases may also be exposed under conveyance on sale head Deemed Leases Agreement for lease for less than 35 years Agreement for lease for more than 35 years Agreement to increase or decrease rent in lease Waiver or abandonment of notice to quit Retention of Apartments by Developers Licences Two Separate Charges to Stamp Duty Under Lease Head Premiums Deemed premiums Rates of duty on premiums Rents Leases for less than one full year Dwellinghouses and apartments Produce/Goods rent Penal rents Surrender in return for a new lease Unascertainable rent Duration of leases and rates of duty on rents Rent review clauses Options to extend lease xii

7 Counterpart or duplicate Rental guarantee Apportionment of Consideration No aggregation of residential and non-residential for rate purposes Contrast with chattels Lease Combined with Building Agreement Residential property Commercial property Reliefs Consanguinity relief Subsale relief Exemptions VAT and Stamp Duty Chapter 11 other Heads and Imposed Duties Introduction Bills of Exchange Charge to Duty Manner and Time of Stamping Unstamped Bills of Exchange Exemptions Non-Life Insurance Policies Non-Life Insurance Policies Levy Life Insurance Policies Releases and Renunciations Surrenders Otherwise than on a Sale Share Warrants Bank Cards Levy on Certain Financial Institutions Certain Statements of Interest: Section 84 Loans Levy on Health Insurers Pension Levy xiii

8 Chapter 12 transfers Between Associated Companies Introduction Extent of Application of the Relief Meaning of Body Corporate Test of Association Transfer of Beneficial Interest Contracts Other Situations Liquidations Receiverships Anti-Avoidance Overview Terminology Consideration Provided or Received by an Outsider - Sub-section 5(A) Previous Transfer of Beneficial Interest Sub-section 5(B) Arrangement to Cease to be Associated Sub-section 5(C) Limitation on Claiming Relief where Intermediary Relief Already Claimed Withdrawal of the Relief Procedure for Claiming Relief Chapter 13 reconstructions and Amalgamations of Companies Terminology Extent of Application of the Relief Reconstructions Amalgamations Is a Winding-up Necessary? Substantial Identity of Ownership Partition of Businesses Meaning of Carry on the Business xiv

9 13.9 Onward Sales Undertaking Acquiring Company Target Company Consideration for the Acquisition Meaning of Issue of Shares and Holders Meaning of Issued Share Capital Prior Ownership Restriction Piecemeal Acquisition Bona fide Commercial Reasons Procedure and Timeframe for Claiming Relief Clawback of Relief Other Anti-Avoidance Measures Chapter 14 financial Services Instruments and other Financial Products Introduction Debt Factoring Agreements Swap Agreements Forward Agreements Financial Futures Agreements Option Agreements Combination Situations Securitisations National Treasury Management Agency (NTMA) National Development Finance Agency (NDFA) Foreign Government Securities Foreign Loan Securities Renounceable Letters of Allotment Investment Schemes Reorganisation of Undertakings for Collective Investment xv

10 14.16 Reconstructions or Amalgamations of Certain Funds Reconstructions or Amalgamations of Certain Common Contractual Funds Reconstructions or Amalgamations of Certain Investment Undertakings Foreign Stocks and Marketable Securities Transfer of Assets within Unit Trusts Transfers Between Offshore Funds Stock-Lending and Repo Reliefs Recognised Clearing Houses American or Canadian Depositary Receipts (ADRs) Greenhouse Gas Emissions Allowances Asset Covered Securities Islamic Finance Exemptions for Pensions Schemes and Charities Chapter 15 Exemptions Introduction Consanguinity Relief Effect of the relief Conditions for the relief Degree of relationship Transaction certificate Adjudication Sub-sale Relief Effect of relief Effect of Sub-sale without Relief Application of the relief generally Same property Immediately Parts or parcels of property Sub-sale after conveyance Partial sub-sales Multiple sub-sales Voluntary Dispositions Inter Vivos Chains of sub-sales Section 31 deemed conveyances on sale xvi

11 Anti-avoidance Periodic payments exceeding 20 years Time limit on application of relief Sub-sale to original vendor Disapplication of consanguinity relief where sub-sale relief applies Disapplication of spouse exemption where sub-sale relief applies Potential for application of sub-sale relief to other heads Associated companies relief Transfer of Site to a Child Application of relief Site Child Transaction certificate Adjudication Clawback Acquisitions by Approved Sports Bodies Application of the exemption Approved sports body Transaction certificate Adjudication Clawback Exemptions Annex 1 Exemptions Chapter 16 Farming Key Reliefs for Farmers Young Trained Farmer Relief Criteria for relief Age Qualifications Other conditions Interest in land Documentation to accompany application for relief Spouses and other joint owners Adjudication Transitional provisions Clawback xvii

12 16.3 Farm Consolidation Relief (Exchanges) Application of relief Consolidation certificate Transaction certificate Declarations Equal value/difference in value Adjudication Spouses and other joint owners Clawback Farm Consolidation Relief (Sale and Purchase) Application of relief Documentation to Accompany Application Consolidation certificate Transaction certificate Declarations Operation of relief Adjudication Spouses and other joint owners Clawback Commercial Woodlands Single Farm Payment Entitlement Certain Family Farm Transfers Chapter 17 Share Acquisitions Introduction Rate and Basis of Charge to Stamp Duty Liability for Stamp Duty Different Types of Consideration Discharge of Debts in Share Acquisitions Options Over Shares Treatment of Employee Share Options in a Takeover Situation Company Mergers Procedure for Stamping Chapter 18 Sale of a Business Introduction Basis of Charge to Stamp Duty xviii

13 18.3 Types of Property Affected by Section Types of Property not Caught by Section Inter-group Transfers Share for Undertaking Swaps Mitigation Opportunities Procedure for Stamping Chapter 19 Incorporation of Businesses Introduction Consideration Involving Issue of Shares Assumption of Liabilities Book Debts Chapter 20 Share Buy-Backs Introduction Stamp Duty Treatment of the Purchase by a Company of its Own Shares Purchase by a Subsidiary of Shares in its Holding Company Takeover Schemes of Arrangement Transfer Schemes of Arrangement Other Share Buy-Back Situations Chapter 21 Raising Finance Introduction Possible Duty on Creation Stamp Duty on Transfer Transfer of Loan Capital Stock Market Introductions and Fundraisings Financial Services Instruments Chapter 22 Intellectual Property Exemption for Intellectual Property What Types of Intellectual Property are Exempt? xix

14 22.3 Need for Apportionment Anti-Avoidance Chapter 23 stamp Duty in Administration of Estates Introduction Stamp Duty on Wills and Legacies Powers of Appropriation Family Arrangements Disclaimers Shares Forming Part of an Estate Chapter 24 Distributions by Companies Introduction Distributions Otherwise than on a Liquidation Distributions in the Course of a Liquidation Distributions on Liquidations by Overseas Companies Effect of Liquidation on Group Structure Chapter 25 Stamp Duty on Trusts Introduction Creation Vesting of Property in Trustees Acquisitions and Disposals by Trustees of Property Appointments of Trust Property Rearrangement of Interests in Trusts Appointment of New/Replacement Trustees Bare Trusts Chapter 26 Partnerships Introduction Formation of a Partnership Introduction of a New Partner xx

15 26.4 Merger of Two Partnerships Transfer of Interest in a Partnership Dissolution of Partnership Retirement Otherwise than on a Dissolution Incorporation of a Partnership Business Chapter 27 Relationship Breakdown Conveyances Between Spouses and Civil Partners Transfers of Property in Connection with Dissolutions Civil Decrees of Nullity Chapter 28 Stamp Duty on Options Introduction Nature of an Option Duty on Grant of Options Rate of Duty on Grant of Options Certain Exempt Options Vesting of Options Exercise of Options Transfer of Property Pursuant to an Exercised Option Relationship of Option Premium to Exercise Price Series of Transaction Several Options under One Contract Transfer of Options Release of Options Ad valorem duty under the release head Abandonment of Options Effect of Options on Group Structure Interest in Underlying Subject Matter Optionee s perspective Grantor s perspective Effect of Tempany v Hynes (Prior to 1st December 2009) xxi

16 More than mere irrevocable offer at least in some circumstances Irish position a matter of degree Chapter 29 Crest Introduction Charging Basis The Flag System Rate of Duty Time for Payment and Collection Mechanism Power to Raise Assessments Exemptions Dematerialisation/Rematerialisation Mere Conveyances No Change in Beneficial Ownership Operator Instructions Effecting Certain Renunciation Rights Recognised Intermediaries Clearing Houses Additional Information Chapter 30 stamp Duty on Residential Property Background Rates Residential Property Curtilage Local authority rating Important Stamp Duty Provisions Contract for Sale of Site and Contract for Construction (Section 29 & 53 SDCA) Effect of provision Application of the Provision Unascertainable consideration Refunds Certificate Aggregation of Transactions xxii

17 30.6 First Time Purchaser Deemed first-time purchasers Owner Occupier Rent-a-room scheme Investor Exemption for Small New Residential Property (Section 91A SDCA) Effect of exemption Application of the exemption Contents of the certificate Effect of no certificate No requirement to be a first-time buyer Adjudication Clawback Reduction in Amount Chargeable for Larger New Residential Property (Section 92 SDCA) Effect of relief Application of relief No Requirement to be a First-time Buyer Adjudication Clawback Relief for First-Time Purchasers from 31 March 2007 (Section 92B SDCA) Effect of relief Application of the relief Content of certificate Requirement to be a first-time buyer Smaller new houses and apartments Purchase monies not provided entirely by first-time buyer Clawback Chapter 31 Commercial Property Background Important Factors Relating to Non-Residential Property Interlocked Substantially completed Not interlocked and not substantially completed xxiii

18 31.3 Rate Timing of Contracts Mixed Residential and Commercial Property Interaction With Corporation Tax Chapter 32 stamp Duty on Sale and Leaseback Transactions Stamp Duty Exposures Retention of Apartment by Developer Other Circumstances Amounting to a Reservation of a Lease Equity Extraction Residential Equity Release Tax Structured Financing Grant of Lease to Nominee Inter-Spousal Transfers Sale & Leaseback of Equipment Chapter 33 e-stamping Introduction Stamp Duty Returns Instruments Where Stamp Duty Return Required Time Limits for Filing Stamp Duty Returns Tax Reference Number Requirement Unregistered and Non Resident Parties Stamp Certificates Retention of Records Assurance Checks and Audits Abolition of Adjudication Expressions of Doubt Valuations Part of a Larger Transaction or Series of Transactions Composition Agreements xxiv

19 33.15 Time Limits for Reopening Stamp Duty Decisions Time Limits for Claiming Repayment of Stamp Duty Interest on Repayments of Duty Mistakes in Deeds Chapter 34 statutory Interpretation and Anti-Avoidance Introduction General Principles of Statutory Interpretation Interpreting Tax Statutes Economic Substance Doctrine Stamp Duty Avoidance Schemes Specific Examples Interpretation Act Revenue Guidelines General Anti-Avoidance Legislation Specific Anti-Avoidance Legislation Chapter 35 Double Taxation Introduction Ireland UK Double Taxation Arrangements Operation of Double Taxation (Relief) (Order No. 1) Composition Arrangements Appendix A1 Leases and Licences A1.1 Lease A1.2 Licence A1.3 Determining Whether a Document is a Lease or a Licence A1.4 Exclusive Possession A1.5 Intention to Create Legal Relations A1.6 Intention to Enter into Landlord and Tenant Relationship xxv

20 A1.7 Terms Inconsistent With a Licence A1.8 Terms Consistent or Inconsistent With a Lease A1.9 Independent Legal Advice Appendix A2 significance of Specific Performance A2.1 Introduction A2.2 Specific Performance Does Not Create a Stampable Document Itself A2.3 Effect of Specific Performance on a Real Property Contract A2.4 Effect of Specific Performance on a Personal Property Contract A2.5 No Conveyance on Sale if Specific Performance Available Appendix A3 Fixtures A3.1 Introduction A3.2 Chattels versus Fixtures A3.3 Determining Factors A3.4 Landlords Fixtures and Tenants Fixtures Appendix A4 Companies Capital Duty A4.1 Introduction A4.2 Capital Company and Territorality A4.3 Exempt Companies A4.4 Effective Centre of Management A4.5 Chargeable Transactions A4.6 Common Situations Giving Rise to a Charge to Capital Duty A4.7 Amount on Which Capital Duty is Chargeable A4.8 Rate of and Procedure for Payment A4.9 Appeals in Certain Cases A4.10 Public Service and Charitable Companies xxvi

21 A4.11 Relief for Share Issues Following a Recent Reduction of Issued Share Capital A4.12 Relief for Shares Issues in Connection with Redemption/ Repurchase and Cancellation of Issued Shares A4.13 Re-issue of Treasury Shares A4.14 Relief for Certain Reconstructions or Amalgamations A4.15 Acquiring Company A4.16 Target Company A4.17 Share for Undertaking Swaps A4.18 Share for Share Swaps A4.19 Non-Share Consideration A4.20 Other Consideration Requirements A4.21 Clawback A4.22 Interaction with Stamp Duty Relief on Reconstructions and Amalgamations A4.23 Capital Duty Review and Appeal Procedures Appendix A5 mortgage, Bond, Debenture, Covenant A5.1 Introduction A5.2 Under Seal/Under Hand A5.3 Property A5.4 Categories of Charge A5.5 Interest A5.6 Mortgage Appendix A6 Mere Conveyances on Sale A6.1 Mere Conveyances A6.1.1 CONVEYANCE or TRANSFER of any kind not already described in this Schedule A6.1.2 Fixed duty A6.1.3 Statutory list A6.1.4 Revenue commissioners list included in notes for guidance (Finance Act 2006) A6.1.5 Other mere conveyances xxvii

22 Appendix A7 first-time Buyers Relief Prior to 31 March Glossary Index xxviii