Revenue Note for Guidance

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Revenue Note for Guidance

817RC Duties of an intermediary

This section sets out the duties of an intermediary, specifically:

  • the obligation of an intermediary to make a return and when such a return must be made,
  • the additional obligations that apply when a reportable cross-border arrangement is a “marketable arrangement”,
  • how a return is to be made,
  • the duty to provide other participants in a reportable cross-border arrangement with the reference number assigned to the arrangement,
  • when an intermediary is exempt from making a return,
  • filing obligations where there is more than one Member State involved, and
  • when an intermediary is exempt from reporting due to legal professional privilege, the requirement to inform another intermediary (or the relevant taxpayer if there is no intermediary) of their reporting obligations.

(1) An intermediary within the meaning of paragraph (a)(i) of the definition of “intermediary” shall make a return to Revenue of the specified information within 30 days beginning –

  1. on the day after the reportable cross-border arrangement is made available for implementation,
  2. on the day after the reportable cross-border arrangement is ready for implementation, or
  3. when the first step in the implementation of the reportable cross-border arrangement was taken,

whichever occurs first.

(2) An intermediary within the meaning of paragraph (a)(ii) of the definition of “intermediary” shall make a return to Revenue of the specified information within 30 days of providing, directly or indirectly, the aid, assistance or advice referred to in paragraph (a)(ii) of the definition of “intermediary”.

(3) In the case of “marketable arrangements”:

  1. an intermediary must state in a return made under subsection (1) or (2) that it is a marketable arrangement; and
  2. not later than 3 months after the date on which a return is made under subsection (1) or (2) and every 3 months after that, an intermediary must notify Revenue, by amending the return, of any new information that has become available in respect of the information referred to in the following paragraphs of section 817RA(3):
    • (a), i.e. information in relation to the identity of each intermediary and relevant taxpayer,
    • (g), i.e. the date on which the first step was taken or will be taken in implementing the reportable cross-border arrangement,
    • (h), i.e. the identification of the Member State of each such relevant taxpayer and any other Member States which are likely to be concerned by the reportable cross-border arrangement, and
    • (i), i.e. 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 return must be made by electronic means. Chapter 6 of Part 38 sets out the provisions that apply when a return is made electronically.

(5) An intermediary who makes a return to Revenue in relation to a reportable cross-border is obliged to furnish all other intermediaries and relevant taxpayers with the reference number assigned to the arrangement. The reference number must be provided within five working days of the later of –

  1. the date on which the intermediary is notified by the Revenue Commissioners of the reference number, or
  2. the date on which another intermediary or relevant taxpayer becomes involved in the arrangement.

(6) An intermediary will be exempt from the obligation to make a return of the specified information to Revenue if the intermediary has received the following, in writing, from another intermediary in the same reportable cross-border arrangement:

  1. confirmation that the other intermediary has provided the specified information to the Revenue Commissioners in a return made under this section, and
  2. the reference number assigned to the arrangement by the Revenue Commissioners.

(7) Subject to subsection (8), if an intermediary is required to provide the specified information to the competent authority of more than one Member State, the information shall be provided only to the competent authority of the Member State in whichever of the following paragraphs first applies:

  1. the Member State where the intermediary is resident for tax purposes,
  2. the Member State where the intermediary has a permanent establishment through which the services with respect to the arrangement are provided,
  3. the Member State which the intermediary is incorporated in or governed by the laws of that state,
  4. the competent authority of the Member State where the intermediary is registered with a professional association related to legal, taxation or consultancy services.

(8) The exemption provided for by subsection (7) will apply only if an intermediary has a copy of the specified information provided to the competent authority of another Member State and written confirmation provided to the intermediary by that competent authority that a reference number has been assigned to the arrangement by that competent authority.

(9)(a) An intermediary is not required to disclose information that is not within their knowledge, possession or control.

(9)(b) An intermediary is not required to disclose information with respect to which a claim to legal professional privilege could be maintained in legal proceedings.

(10) Where a claim under subsection (9)(b) could be maintained in legal proceedings, an intermediary is required to inform another intermediary (or the relevant taxpayer if there is no other intermediary) of their disclosure obligations under this Chapter.

Relevant Date: Finance Act 2019