817RA Interpretation

This section contains key definitions, provides that an intermediary has the right to provide evidence that they did not know and could not reasonably be expected to know that the person was involved in a reportable cross-border arrangement, and sets out the specified information that has to be provided.

Definitions

“arrangement” is broadly defined to cover all types of arrangements, including an arrangement comprised of more than one step or part and a series of arrangements.

“associated enterprise” has the same meaning as it has in Article 3(23) of the Directive and means a person who is related to another person in at least one of the following ways:

1. a person participates in the management of another person by being in a position to exercise a significant influence over the other person;
2. a person participates in the control of another person through a holding that exceeds 25% of the voting rights;
3. a person participates in the capital of another person through a right of ownership that, directly or indirectly, exceeds 25% of the capital;
4. a person is entitled to 25% or more of the profits of another person.

If more than one person, as described in points (a) to (d), participates in the management, control, capital or profits of the same person, all persons concerned shall be regarded as associated enterprises.

If the same persons, as described in points (a) to (d), participate in the management, control, capital or profits of more than one person, all persons concerned shall be regarded as associated enterprises.

For the purposes of this point, a person who acts together with another person in respect of the voting rights or capital ownership of an entity shall be treated as holding a participation in all of the voting rights or capital ownership of that entity that are held by the other person.

In indirect participations, the fulfilment of requirements under point (c) shall be determined by multiplying the rates of holding through the successive tiers. A person holding more than 50% of the voting rights shall be deemed to hold 100%.

An individual, his or her spouse and his or her lineal ascendants or descendants shall be treated as a single person.

“competent authority” is defined as the authority designated as such by a Member State for the purposes of the Directive. In relation to the State, it means the Revenue Commissioners.

“cross-border arrangement” has the same meaning as it has in the Directive and means an arrangement concerning either more than one Member State or a Member State and a third country where at least one of the following conditions is met:

1. not all of the participants in the arrangement are resident for tax purposes in the same jurisdiction;
2. one or more of the participants in the arrangement is simultaneously resident for tax purposes in more than one jurisdiction;
3. one or more of the participants in the arrangement carries on a business in another jurisdiction through a permanent establishment situated in that jurisdiction and the arrangement forms part or the whole of the business of that permanent establishment;
4. one or more of the participants in the arrangement carries on an activity in another jurisdiction without being resident for tax purposes or creating a permanent establishment situated in that jurisdiction;
5. such arrangement has a possible impact on the automatic exchange of information or the identification of beneficial ownership;

“Directive” means Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation, as amended.

“electronic means” includes electrical, digital, magnetic, optical, electromagnetic, biometric, photonic means of transmission of data and other forms of related technology by means of which data is transmitted.

“hallmark” has the same meaning as it has in the Directive and means a characteristic or feature of a cross-border arrangement that presents an indication of a potential risk of tax avoidance, as listed in Annex IV of the Directive.

“intermediary” means any person that:

1. 1. designs, markets, organises or makes available for implementation or manages the implementation of a reportable cross-border arrangement, or
   2. having regard to the relevant facts and circumstances and based on available information and the relevant expertise and understanding required to provide such services, knows or could be reasonably expected to know that such person has undertaken to provide, directly or by means of other persons, aid, assistance or advice with respect to designing, marketing, organising, making available for implementation or managing the implementation of a reportable cross-border arrangement,
   
   and
2. meets at least one of the following conditions:
• the person is resident for tax purposes in a Member State;
• the person has a permanent establishment in a Member State through which the services with respect to the arrangement are provided;
• the person is incorporated in, or governed by the laws of, a Member State;
• the person is registered with a professional association related to legal, taxation or consultancy services in a Member State.

“marketable arrangement” has the same meaning as it has in the Directive and means a cross-border arrangement that is designed, marketed, ready for implementation or made available for implementation without a need to be substantially customised.

“person” has the same meaning as it has in the Directive and means:

1. a natural person;
2. a legal person;
3. where the legislation in force so provides, an association of persons recognised as having the capacity to perform legal acts but lacking the status of a legal person; or
4. any other legal arrangement of whatever nature and form, regardless of whether it has legal personality, owning or managing assets, which, including income derived therefrom, are subject to any of the taxes covered by this Directive.

“reference number” means the number assigned to a reportable cross-border arrangement by either the Revenue Commissioners or by the competent authority of another Member State.

“Regulations of 2012” means the European Union (Administrative Cooperation in the Field of Taxation) Regulations 2012 (S.I. No. 549 of 2012), as amended.

“relevant taxpayer” has the same meaning as it has in the Directive and means any person to whom a reportable cross-border arrangement is made available for implementation, or who is ready to implement a reportable cross-border arrangement or has implemented the first step of such an arrangement.

“reportable cross-border arrangement” has the same meaning as it has in the Directive and means any cross-border arrangement that contains at least one of the hallmarks set out in Annex IV of the Directive.

“return” means any return, claim, application, notification, election, declaration, nomination, statement, list, registration, particulars or other information which a person is or may be required to give to the Revenue Commissioners or any Revenue officer;

“specified information” means the information set out in subsection (3);

“tax advantage” means:

1. relief or increased relief from, or a reduction, avoidance or deferral of, any assessment, charge or liability to tax, including any potential or prospective assessment, charge or liability,
2. a refund or repayment of, or a payment of, an amount of tax, or an increase in an amount of tax refundable, repayable or otherwise payable to a person, including any potential or prospective amount so refundable, repayable or payable, or an advancement of any refund or repayment of, or payment of, an amount of tax to a person, or
3. the avoidance of any obligation to deduct or account for tax,

arising out of or by reason of an arrangement, including an arrangement where another arrangement would not have been undertaken or arranged to achieve the results, or any part of the results, achieved or intended to be achieved by the arrangement;

“taxpayer identification number” means the tax identification number (TIN) allocated to a person by the tax administration of the jurisdiction of residence of the person and, in relation to the State, means a tax reference number within the meaning of section 885. A tax reference number within the meaning of section 885 is any of the following —

• the Personal Public Service Number (PPSN) stated on the certificate of tax credits and standard rate cut-off point issued to that person by an inspector,
• the reference number quoted on any return of income form or notice of assessment issued to a specified person by an inspector, and
• a specified person’s VAT registration number.

(2) A person referred to in paragraph (a)(ii) of the definition of an “intermediary” will have the right to provide evidence that the person did not know and could not reasonably be expected to know that the person was involved in a reportable cross-border arrangement. For this purpose, the person may refer to all relevant facts and circumstances as well as available information and the person’s relevant expertise and understanding.

(3) The “specified information” that intermediaries and taxpayers will be required to provide to Revenue is:

1. information in relation to the identity of each intermediary and relevant taxpayer, including:
   • name,
   • whether individual or entity,
   • date and place of birth (in the case of an individual),
   • country of residence for tax purposes,
   • taxpayer identification number,
   • country of issuance of taxpayer identification number,
   • the person’s address, where the taxpayer identification number and/or country of issuance of the taxpayer identification number of a person is not known, and
   • the persons that are associated enterprises to each such relevant taxpayer,
2. details of each hallmark that makes the cross-border arrangement reportable,
3. a summary of the content of the reportable cross-border arrangement, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information the disclosure of which would be contrary to public policy. The summary should include: the name by the arrangement is commonly known, if any, and a description in abstract terms of the relevant business activities or arrangements,
4. the reference number assigned to the reportable cross-border arrangement, if such a number has already been assigned to it by the Revenue Commissioners or the Competent Authority of another Member State,
5. details of the national legislative provisions that form the basis of the reportable cross-border arrangement,
6. the value of the reportable cross-border arrangement,
7. the date on which the first step was taken or will be taken in implementing the reportable cross-border arrangement,
8. the identification of the Member State of each relevant taxpayer and any other Member States which are likely to be concerned by the reportable cross-border arrangement, and
9. the identification of any other person in a Member State likely to be affected by the reportable cross-border arrangement, indicating to which Member States such person is linked.

(4) A word or expression used in the Chapter and in the Directive has the same meaning in the Chapter as in the Directive, unless the contrary intention appears.

Relevant Date: Finance Act 2019