172F Obligations of qualifying intermediary in relation to relevant distributions.

(1) A qualifying intermediary which is to receive on behalf of other persons—

(a) any relevant distributions to be made by any company resident in the State, or

(b) from another qualifying intermediary amounts or other assets (in this section referred to as “payments”) representing such distributions,

shall create and maintain, in relation to such distributions and payments, 2 separate and distinct categories to be known, respectively, as the “Exempt Fund” and the “Liable Fund”, and the qualifying intermediary shall notify that company or that other qualifying intermediary, as the case may be, by way of notice in writing, whether the relevant distributions to be made to it by that company, or, as the case may be, the payments representing such distributions to be made to it by that other qualifying intermediary, are to be received by it for the benefit of a person included in the Exempt Fund or a person included in the Liable Fund.

(2) Subject to subsections (3) and (5), a qualifying intermediary shall include in its Exempt Fund in relation to such distributions and payments only those persons on whose behalf it is to receive such distributions or payments, being—

(a) persons beneficially entitled to such distributions or payments who are non-liable persons in relation to such distributions, and

(b) any further qualifying intermediary to whom such distributions or payments (or amounts or other assets representing such distributions or payments) are to be given by the qualifying intermediary and are to be received by that further qualifying intermediary for the benefit of persons included in that further qualifying intermediary’s Exempt Fund.

(3) (a) A qualifying intermediary shall not include a person referred to in subsection (2)(a) in its Exempt Fund unless it has received from that person—

(i) a declaration made by that person in accordance with section 172C(2), or

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(ii) a declaration made by that person in accordance with section 172D(3) in relation to which—

(I) the certificate referred to in paragraph 8(f) of Schedule 2A is a current certificate (within the meaning of paragraph 2 of that Schedule), or

(II) the certificates referred to in ^[8]>subparagraphs (f) and (g) of paragraph 9^<[8][8]>paragraph 9(f)^<[8] of that Schedule are current certificates (within the meaning of paragraph 2 of that Schedule),

as the case may be, at the time of the making of the relevant distributions.

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(ii) a declaration made by that person in accordance with section 172D(3)—

(I) in relation to which the certificate referred to in paragraph 8(f) of Schedule 2A is a current certificate (within the meaning of paragraph 2 of that Schedule), or

(II) which is a current declaration (within the meaning of paragraph 2A of Schedule 2A),

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(b) A qualifying intermediary shall not include a further qualifying intermediary referred to in subsection (2)(b) in its Exempt Fund unless the qualifying intermediary has received from that further qualifying intermediary a notification in writing given to the qualifying intermediary by that further qualifying intermediary in accordance with subsection (1) to the effect that the relevant distributions made by the company resident in the State, or, as the case may be, the payments representing such distributions, which are to be given by the qualifying intermediary to that further qualifying intermediary are to be received by that further qualifying intermediary for the benefit of a person included in that further qualifying intermediary’s Exempt Fund.

(c) Notwithstanding paragraphs (a) and (b), a qualifying intermediary, being a depositary bank holding shares in trust for, or on behalf of, the holders of American depositary receipts, shall, if provided for in the qualifying intermediary agreement and subject to any conditions specified in that agreement, operate the provisions of paragraph (d).

(d) Where this paragraph applies in relation to a qualifying intermediary, the qualifying intermediary shall include in its Exempt Fund—

(i) any person on whose behalf it is to receive any relevant distributions to be made by a company resident in the State, or on whose behalf it is to receive from another qualifying intermediary payments representing such distributions, being a person who is beneficially entitled to such distributions or payments, who is the holder of an American depositary receipt and whose address on the qualifying intermediary’s register of depositary receipts is located in the United States of America, and

(ii) any specified intermediary to which such distributions or payments (or amounts or other assets representing such distributions or payments) are to be given by the qualifying intermediary and are to be received by that specified intermediary for the benefit of—

(I) persons who are beneficially entitled to such distributions or payments, who are the holders of American depositary receipts, whose address on that specified intermediary’s register of depositary receipts is located in the United States of America, and who in accordance with paragraph (e)(iii)(I) are to be included in that specified intermediary’s Exempt Fund, or

(II) any further specified intermediary to which such distributions or payments (or amounts or other assets representing such distributions or payments) are to be given by the first-mentioned specified intermediary and are to be received by that further specified intermediary for the benefit of persons who in accordance with clauses (I) and (II) of paragraph (e)(iii) are to be included in that further specified intermediary’s Exempt Fund.

(e) ^[2]>For the purposes of paragraph (d)^<[2][2]>For the purposes of this section, but subject to paragraphs (g) and (h)^<[2], an intermediary shall be treated as a specified intermediary if the intermediary—

(i) is not a qualifying intermediary but is a person referred to in paragraph (a), (b), (c) or (d) of section 172E(4) who is operating as an intermediary in an establishment situated in the United States of America,

(ii) creates and maintains, in relation to such distributions or payments (or amounts or other assets representing such distributions or payments) to be received by it on behalf of other persons from a qualifying intermediary or another specified intermediary, an Exempt Fund and a Liable Fund in accordance with subsections (1) and (5), but subject to subparagraphs (iii) and (iv), as if it were a qualifying intermediary,

(iii) includes in its Exempt Fund in relation to such distributions or payments (or amounts or other assets representing such distributions or payments), only—

(I) those persons who are beneficially entitled to such distributions or payments, being persons who are the holders of American depositary receipts and whose address on its register of depositary receipts is located in the United States of America, and

(II) any further specified intermediary to which such distributions or payments (or amounts or other assets representing such distributions or payments) are to be given by the intermediary and are to be received by that further specified intermediary for the benefit of persons who in accordance with this subparagraph are to be included in that further specified intermediary’s Exempt Fund,

(iv) includes in its Liable Fund in relation to such distributions or payments (or amounts or other assets representing such distributions or payments), all other persons (being persons who are the holders of American depositary receipts) on whose behalf such distributions or payments (or amounts or other assets representing such distributions or payments) are to be received by it from a qualifying intermediary or a further specified intermediary, other than those persons included in its Exempt Fund,

(v) notifies, ^[3]>by way of notice in writing given in accordance with subsection (1)^<[3][3]>by way of notice in writing or in electronic format^<[3], the qualifying intermediary or, as the case may be, the further specified intermediary from whom it is to receive, on behalf of other persons, such distributions or payments (or amounts or other assets representing such distributions or payments), whether such distributions or payments (or amounts or other assets representing such distributions or payments) are to be so received by it for the benefit of persons included in its Exempt Fund or persons included in its ^[3]>Liable Fund^<[3][3]>Liable Fund, and^<[3],

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(vi) notifies the qualifying intermediary or, as the case may be, the further specified intermediary, by way of notice in writing or in electronic format, at the time it gives such distributions or payments (or amounts or other assets representing such distributions or payments) to other persons, of the name and address of each such person, and

(vii) agrees that the information given in accordance with subparagraph (vi) to the qualifying intermediary or, as the case may be, the further specified intermediary shall be returned by the qualifying intermediary to the Revenue Commissioners in accordance with subsection (7)(f).

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(vi) enters into an agreement with the qualifying intermediary or further specified intermediary, as the case may be, under the terms of which it agrees that if and when required to comply with subsection (7A) it will do so.

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(f) Where, by virtue of the preceding provisions of this subsection, any person, being a person who, apart from this paragraph, would not be a non-liable person in relation to the distributions or payments (or amounts or other assets representing such distributions or payments) to be received on that person’s behalf by a qualifying intermediary or a specified intermediary, is included in the Exempt Fund of the qualifying intermediary or, as the case may be, of the specified intermediary, that person shall, notwithstanding any other provision of this Chapter, be treated as a non-liable person in relation to such distributions.

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(g) Notwithstanding paragraph (e), where the Revenue Commissioners are satisfied that an intermediary, being a specified intermediary or other specified intermediary referred to in subsection (7A), has failed to comply with that subsection—

(i) the Commissioners may, by notice in writing given to the intermediary, notify it that it shall cease to be treated as a specified intermediary for the purposes of this section from such date as may be specified in the notice, and

(ii) notwithstanding any obligations as to secrecy or other restriction upon disclosure of information imposed by or under statute or otherwise, the Commissioners may make available to any qualifying intermediary (being a depositary bank holding shares in trust for, or on behalf of, the holders of American depositary receipts) or specified intermediary a copy of such notice.

(h) Where subsequently the Revenue Commissioners are satisfied that the intermediary has furnished the information required under subsection (7A) and will in future comply with that subsection if and when requested to do so, the Commissioners may, by further notice in writing given to the intermediary, revoke the notice given to the intermediary under paragraph (g) from such date as may be specified in the further notice, and a copy of that further notice shall be given to any person to whom a copy of the notice under paragraph (g) was given.

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(4) Subject to subsection (5), a qualifying intermediary shall include in its Liable Fund in relation to relevant distributions to be made to it by a company resident in the State and payments representing such distributions to be made to it by another qualifying intermediary all persons on whose behalf the qualifying intermediary is to receive such distributions or payments, other than those persons included in its Exempt Fund in relation to such distributions and payments.

(5) A qualifying intermediary shall update its Exempt Fund and Liable Fund, in relation to relevant distributions to be made to it by a company resident in the State and payments representing such distributions to be made to it by another qualifying intermediary, as often as may be necessary to ensure that the provisions of section 172E(1) and subsections (2) to (4) of this section are complied with, and shall notify the company or, as the case may be, that other qualifying intermediary, by way of notice in writing, of all such updates.

(6) Where at any time a company resident in the State makes a relevant distribution to a qualifying intermediary and, apart from this subsection, the relevant distribution would be treated as being made to the qualifying intermediary for the benefit of a person beneficially entitled to the relevant distribution who is a non-liable person in relation to that distribution, the distribution shall be treated as if it were not made to the qualifying intermediary for the benefit of such a person unless, at or before that time, the qualifying intermediary has notified the company in accordance with subsection (1) or (5), as the case may be, that the relevant distribution is to be received by the qualifying intermediary for the benefit of a person included in the qualifying intermediary’s Exempt Fund in relation to relevant distributions to be made to the qualifying intermediary by the company, and accordingly, in the absence of such a notification, section 172B shall apply in relation to the relevant distribution.

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(7) A qualifying intermediary shall, as respects each year of assessment (being the year of assessment 1999-2000 or any subsequent year of assessment) make a return to the Revenue Commissioners showing—

(a) the name and address of the qualifying intermediary,

(b) the name and address of—

(i) each company resident in the State from which the qualifying intermediary received, on behalf of another person, a relevant distribution made by that company in the year of assessment to which the return refers, and

(ii) each other person from whom the qualifying intermediary received, on behalf of another person, an amount or other asset representing a relevant distribution made by a company resident in the State in the year of assessment to which the return refers,

(c) the amount of each such relevant distribution,

(d) the name and address of each person to whom such a relevant distribution, or an amount or other asset representing such a relevant distribution, has been given by the qualifying intermediary,

(e) the name and address of each person referred to in paragraph (d) in respect of whom a declaration under section 172C(2) or section 172D(3) has been received by the qualifying intermediary, and

(f) where subsection (3)(d) applies in relation to the qualifying intermediary, the information given to the qualifying intermediary by specified intermediaries in accordance with subsection (3)(e)(vi).

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(7) (a) A qualifying intermediary shall, on being so required by notice in writing given to the qualifying intermediary by the Revenue Commissioners, make a return to the Commissioners, within the time specified in the notice (which shall not be less than 30 days) and as respects such year of assessment as may be specified in the notice (being the year of assessment 1999-2000 or any subsequent year of assessment), showing—

(i) the name and address of—

(I) each company resident in the State from which the qualifying intermediary received, on behalf of another person, a relevant distribution made by that company in the year of assessment to which the return refers, and

(II) each other person from whom the qualifying intermediary received, on behalf of another person, an amount or other asset representing a relevant distribution made by a company resident in the State in the year of assessment to which the return refers,

(ii) the amount of each such relevant distribution,

(iii) the name and address of each person to whom such a relevant distribution, or an amount or other asset representing such a relevant distribution, has been given by the qualifying intermediary, and

(iv) the name and address of each person referred to in subparagraph (iii) in respect of whom a declaration under section 172C(2) or 172D(3) has been received by the qualifying intermediary.

(b) A return required to be made by a qualifying intermediary under paragraph (a) may be confined to such class or classes of relevant distributions as may be specified in the notice given to the qualifying intermediary by the Revenue Commissioners under that paragraph.

(7A) (a) This subsection shall apply where a qualifying intermediary has been required to make a return to the Revenue Commissioners under subsection (7)(a) and a relevant distribution (or an amount or other asset representing a relevant distribution), the details of which are required to be included in that return, has been given by the qualifying intermediary to a specified intermediary.

(b) The qualifying intermediary shall, immediately on receipt of the notice referred to in subsection (7)(a), request the specified intermediary, by way of notice in writing or in electronic format, to notify the qualifying intermediary or the Revenue Commissioners of the name and address of each person to whom the specified intermediary gave such a distribution (or an amount or other asset representing such a distribution) and of the amount of each such distribution.

(c) The specified intermediary shall, within 21 days of the receipt of a notice under paragraph (b), furnish to the qualifying intermediary or, at the discretion of the specified intermediary, to the Revenue Commissioners, by way of notice in writing or in electronic format, the information required under that paragraph.

(d) Where the specified intermediary furnishes the information required under paragraph (b)—

(i) to the qualifying intermediary, the qualifying intermediary shall include that information in the return required to be made by it under subsection (7)(a), or

(ii) to the Revenue Commissioners, the specified intermediary shall, by way of notice in writing or in electronic format, immediately advise the qualifying intermediary of that fact and the qualifying intermediary shall include in the return required to be made by it under subsection (7)(a) a statement to the effect that it has been so advised by the specified intermediary.

(e) If any person to whom a specified intermediary gave such a distribution (or an amount or other asset representing such a distribution) is another specified intermediary, the specified intermediary shall, immediately on the receipt of a notice under paragraph (b), request the other specified intermediary, by way of notice in writing or in electronic format, to notify the specified intermediary or the Revenue Commissioners of the name and address of each person to whom it gave such a distribution (or an amount or other asset representing such a distribution) and of the amount of each such distribution.

(f) The other specified intermediary shall, within 21 days of the receipt of a notice under paragraph (e), furnish to the specified intermediary or, at the discretion of the other specified intermediary, to the Revenue Commissioners, by way of notice in writing or in electronic format, the information required under that paragraph.

(g) Where the other specified intermediary furnishes the information required under paragraph (e)—

(i) to the specified intermediary, the specified intermediary shall, by way of notice in writing or in electronic format, immediately transmit that information to the person referred to in paragraph (d) (being the qualifying intermediary or the Revenue Commissioners, as the case may be) to whom it furnishes the information required under paragraph (b), and—

(I) if that person is the qualifying intermediary, the qualifying intermediary shall include that information in the return required to be made by it under subsection (7)(a), or

(II) if that person is the Revenue Commissioners, the specified intermediary shall, by way of notice in writing or in electronic format, immediately advise the qualifying intermediary of the fact that the information required to be furnished by the other specified intermediary under paragraph (e) has been furnished to the specified intermediary and transmitted by the specified intermediary to the Revenue Commissioners in accordance with this paragraph and the qualifying intermediary shall include in the return to be made by it under subsection (7)(a) a statement to the effect that it has been so advised by the specified intermediary,

or

(ii) to the Revenue Commissioners, the other specified intermediary shall, by way of notice in writing or in electronic format, immediately advise the specified intermediary of that fact, the specified intermediary shall in turn, by way of similar notice, immediately advise the qualifying intermediary of that fact and the qualifying intermediary shall include in the return required to be made by it under subsection (7)(a) a statement to the effect that it has been so advised by the specified intermediary.

(h) Where, in accordance with this subsection, the specified intermediary or the other specified intermediary furnishes information to the Revenue Commissioners in electronic format, such format shall be agreed in advance with the Revenue Commissioners.

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(8) Subject to subsection (9), every return by a qualifying intermediary under subsection (7) shall be made^[7]>, not later than the 21st day of May following the year of assessment to which the return refers,^<[7] in an electronic format approved by the Revenue Commissioners and shall be accompanied by a declaration made by the qualifying intermediary, on a form prescribed or authorised for that purpose by the Revenue Commissioners, to the effect that the return is correct and complete.

(9) Where the Revenue Commissioners are satisfied that a qualifying intermediary does not have the facilities to make a return under subsection (7) in the format referred to in subsection (8), the return shall be made in writing in a form prescribed or authorised by the Revenue Commissioners and shall be accompanied by a declaration made by the qualifying intermediary, on a form prescribed or authorised for that purpose by the Revenue Commissioners, to the effect that the return is correct and complete.