Taxes Consolidation Act, 1997 (Number 39 of 1997)
[25]>
[21]>
491 Restriction on relief where amounts raised exceed permitted maximum.
[FA84 s13A; FA89 s9; FA91 s15(1)(c) and s17(1)(b) and (c); FA93 s25(d)(i)(II) and FA96 s19(1) and (2); FA97 s146(1) and Sch9 par13(2)]
(1) In this section, “qualifying subsidiary”, in relation to a company, means a subsidiary of that company of a kind which a company may have by virtue of section 507.
[1]>
(2) (a) Subject to this section, where a company raises any amount through the issue of eligible shares (in this section referred to as “the relevant issue”), relief shall not be given in respect of the excess of the amount over the amount determined by the formula—
£1,000,000 – A
where A is the lesser of—
(i) £1,000,000, and
(ii) an amount equal to the aggregate of all amounts raised by the company through the issue of eligible shares at any time before the relevant issue.
(b) Notwithstanding paragraph (a), in the case of a company which, or whose qualifying subsidiary, either carries on or intends to carry on qualifying trading operations referred to in section 496(2)(a)(iv), this section shall apply, in relation to that company and money raised or intended to be raised by it under this Part by virtue of section 496(2)(a)(iv)(II), as if in the formula in paragraph (a) and in the formula in subsection (3) “£100,000” were substituted for “£1,000,000” in each place where it occurs.
(3) Where a company raises any amount through a relevant issue and that company is associated (within the meaning of this section) with one or more other companies, then, as respects that company, relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—
£1,000,000 − B
where B is an amount equal to so much as does not exceed £1,000,000 of the aggregate of all amounts raised through the issue of eligible shares at any time before or on the date of the relevant issue (other than the amount raised through the relevant issue) by all of the companies (including that company) which are associated within the meaning of this section.
<[1]
[1]>
(2) [14]>(a) Subject to this section, where a company raises any amount through the issue of eligible shares on or after the 3rd day of December, 1997, (in this section referred to as “the relevant issue”), relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—<[14]
[14]>
A − B
where—
A is—
(i) in the case of a company which, or whose qualifying subsidiary, raises the amount by virtue of section 496(2)(a)(iv)(II), [4]>£100,000<[4][4]>€127,000<[4],
(ii) in the case of a relevant investment, [5]>£500,000<[5][5]>€635,000<[5],
(iii) in the case where the money raised was used, is being used or is intended to be used solely for qualifying trading operations referred to in section 496(2)(a)(ix) carried on or to be carried on by the company or its qualifying subsidiary, [6]>£1,000,000<[6][6]>€1,270,000<[6], or
(iv) in any other case, [7]>£250,000<[7][7]>€317,500<[7], and
B is the lesser of—
(i) the appropriate amount represented by A in the formula, and
(ii) an amount equal to the aggregate of all amounts raised by the company through the issue of eligible shares at any time before the relevant issue other than—
(I) where A in the formula is £100,000, the first [8]>£400,000<[8][8]>€508,000<[8], and
(II) where A in the formula is £250,000, the first £250,000,
of any amounts raised by way of relevant investments.
<[14]
[14]>
(a) Subject to this section, where a company raises any amount through the issue of eligible shares on or after [18]>1 January 2002<[18][18]>1 January 2007<[18] (in this section referred to as “the relevant issue”), relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—
A − B
where—
[19]>
A is—
<[19]
[19]>
A is €2,000,000,
<[19]
(i) in the case of a company which, or whose qualifying subsidiary, raises the amount by virtue of section 496(2)(a)(iv)(II), €127,000,
(ii) in the case where the money raised was used, is being used or is intended to be used solely for qualifying trading operations referred to in section 496(2)(a)(ix) carried on or to be carried on by the company or its qualifying subsidiary, €1,270,000, or
(iii) in any other case, [16]>€750,000<[16][16]>€1,000,000<[16],
and
B is the lesser of—
(i) the appropriate amount represented by A in the formula, and
(ii) an amount equal to the aggregate of all amounts raised by the company through the issue of eligible shares at any time before the relevant issue.
<[14]
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(b) (i) Where a company raises any amount through a relevant issue which amount consists of a relevant investment and any other amount, the relevant issue shall be deemed for the purposes of this subsection (but for no other purpose of this Part) to consist of 2 separate issues of eligible shares one of which shall be in respect of the relevant investment (in this paragraph referred to as “the first issue”) and the other in respect of the other amount raised (in this paragraph referred to as “the second issue”).
(ii) Where subparagraph (i) applies, the first issue shall be deemed for the purposes of this subsection (but for no other purpose of this Part) to have been made on the day before the date of the relevant issue and the second issue shall be deemed for the purposes of this subsection (but for no other purpose of this Part) to have been made on the date of the relevant issue and paragraph (a) shall apply accordingly.
<[20]
(3) [15]>(a) Where a company raises any amount through a relevant issue and that company is associated (within the meaning of this section) with one or more other companies, then, as respects that company, relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—<[15]
[15]>
A − B
where—
A is—
(i) in the case of a company which, or whose qualifying subsidiary, raises the amount by virtue of section 496(2)(a)(iv)(II), [9]>£100,000<[9][9]>€127,000<[9],
(ii) in the case of a relevant investment, [10]>£500,000<[10][10]>€635,000<[10],
(iii) in the case where the money raised was used, is being used or is intended to be used solely for qualifying trading operations referred to in section 496(2)(a)(ix) carried on or to be carried on by the company or its qualifying subsidiary, [11]>£1,000,000<[11][11]>€1,270,000<[11], or
(iv) in any other case, [12]>£250,000<[12][12]>€317,500<[12], and
B is the lesser of—
(i) the appropriate amount represented by A in the formula, and
(ii) the aggregate of all amounts raised through the issue of eligible shares at any time before or on the date of the relevant issue by all of the companies (including that company) which are associated within the meaning of this section other than—
(I) the amount raised through the relevant issue, and
(II) (A) where A in the formula is £100,000, the first [13]>£400,000<[13][13]>€508,000<[13], and
(B) where A in the formula is £250,000, the first £250,000, of any amounts raised by way of relevant investments.
<[15]
[15]>
(a) Where, on or after [18]>1 January 2002<[18][18]>1 January 2007<[18], a company raises any amount through a relevant issue and that company is associated (within the meaning of this section) with one or more other companies, then, as respects that company, relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—
A − B
where—
[19]>
A is—
<[19]
[19]>
A is €2,000,000,
<[19]
(i) in the case of a company which, or whose qualifying subsidiary, raises the amount by virtue of section 496(2)(a)(iv)(II), €127,000,
(ii) in the case where the money raised was used, is being used or is intended to be used solely for qualifying trading operations referred to in section 496(2)(a)(ix) carried on or to be carried on by the company or its qualifying subsidiary, €1,270,000, or
(iii) in any other case, [16]>€750,000<[16][16]>€1,000,000<[16],
and
B is the lesser of—
(i) the appropriate amount represented by A in the formula, and
(ii) the aggregate of all amounts raised through the issue of eligible shares at any time before or on the date of the relevant issue by all of the companies (including that company) which are associated within the meaning of this section.
<[15]
[20]>
(b) (i) Where a company raises any amount through a relevant issue which amount consists of a relevant investment and any other amount, the relevant issue shall be deemed for the purposes of this subsection (but for no other purpose of this Part) to consist of 2 separate issues of eligible shares one of which shall be in respect of the relevant investment (in this paragraph referred to as “the first issue”) and the other in respect of the other amount raised (in this paragraph referred to as “the second issue”).
(ii) Where subparagraph (i) applies, the first issue shall be deemed for the purposes of this subsection (but for no other purpose of this Part) to have been made on the day before the date of the relevant issue and the second issue shall be deemed for the purposes of this subsection (but for no other purpose of this Part) to have been made on the date of the relevant issue and paragraph (a) shall apply accordingly.
<[20]
<[1]
[17]>
(3A) Notwithstanding anything in subsections (2) and (3), relief shall not be given in respect of a relevant issue to the extent that—
(a) the amount raised by the relevant issue, or
(b) the aggregate of—
(i) the amount to be raised through the relevant issue, and
(ii) the amount or amounts, if any, raised through the issue of eligible shares other than the relevant issue, within the period of 6 months ending with the date of that relevant issue, by the company or by all of the companies (including the company making the relevant issue) which are associated within the meaning of this section, as the case may be,
exceeds €750,000.
<[17]
(4) For the purposes of this section, a company shall be associated with another company where—
(a) in the case of that company, or a company which is, or was at any time, its qualifying subsidiary, and
(b) that other company, or a company which is, or was at any time, its qualifying subsidiary,
it could reasonably be considered that—
(i) both companies act in pursuit of a common purpose,
(ii) any person or any group of persons or groups of persons having a reasonable commonality of identity have or had the means or power, either directly or indirectly, to determine the trading operations carried on or to be carried on by both companies, or
(iii) both companies are under the control of any person or group of persons or groups of persons having a reasonable commonality of identity;
but for the purposes of this section a company shall not be considered as associated with another company by reason only of the fact [3]>that a subscription for eligible shares in both companies is made by a person or persons having the management of an investment fund designated under section 508 as nominee for any person or group or groups of persons.<[3][3]>that—<[3]
[3]>
(I) a subscription for eligible shares in both companies is made by a person or persons having the management of an investment fund designated under section 508 as nominee for any person or group or groups of persons, or
(II) both companies hold shares or securities in, or have made loans to, Exchange Axess or carry on in limited partnership with Exchange Axess such qualifying trading operations as are referred to in section 496(2)(a)(iv).
<[3]
[2]>
(5) In determining for the purposes of the formula in subsection (2)(a) or, as the case may be, the formula in subsection (3) the amount to which paragraph (ii) of the definition of “A” in subsection (2)(a) or, as the case may be, the amount to which the definition of “B” in subsection (3) relates, account shall not be taken of any amount—
(a) which is subscribed by a person other than an individual who qualifies for relief, or
(b) in respect of which relief is precluded by virtue of section 490.
<[2]
[2]>
(5) In determining for the purposes of the formula in subsection (2)(a) or, as the case may be, the formula in subsection (3)(a) the amount to which paragraph (ii) of the definition of “B” in those formulas relates, account shall not be taken of any amount—
(a) which is subscribed by a person other than an individual who qualifies for relief, or
(b) in respect of which relief is precluded by virtue of section 490.
<[2]
(6) Where as a consequence of subsection (2) or (3) the giving of relief would be precluded on claims in respect of shares issued to 2 or more individuals, the available relief shall be divided between them respectively in proportion to the amounts which have been subscribed by them for the shares to which their claims relate and which apart from this section would be eligible for relief.
<[21]
[21]>
491 Restriction on relief where amounts raised exceed permitted maximum.
(1) In this section “qualifying subsidiary”, in relation to a company, means a subsidiary of that company of a kind which a company may have by virtue of section 505.
(2) Subject to this section, where a company raises any amount through the issue of eligible shares (in this section referred to as the “relevant issue”), relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—
A – B
where—
A is [22]>€10,000,000<[22][22]>€15,000,000<[22],
and
B is the lesser of—
(a) the amount represented by A in the formula, and
(b) an amount equal to the aggregate of all amounts raised by the company through the issue of eligible shares at any time on or after 6 April 1984 and before the relevant issue.
(3) Where, a company raises any amount through a relevant issue and that company is associated (within the meaning of this section) with one or more other companies, then, as respects that company, relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—
A – B
where—
A is [23]>€10,000,000<[23][23]>€15,000,000<[23],
and
B is the lesser of—
(a) the amount represented by A in the formula, and
(b) the aggregate of all amounts raised through the issue of eligible shares, at any time before or on the date of the relevant issue, by all of the companies (including that company) which are associated within the meaning of this section.
(4) Notwithstanding anything in subsections (2) and (3), relief shall not be given in respect of a relevant issue to the extent that—
(a) the amount raised by the relevant issue, or
(b) the aggregate of—
(i) the amount to be raised through the relevant issue, and
(ii) the amount or amounts, if any, raised through the issue of eligible shares other than the relevant issue, within the period of 12 months ending with the date of that relevant issue, by the company or by all of the companies (including the company making the relevant issue) which are associated within the meaning of this section, as the case may be,
exceeds [24]>€2,500,000<[24][24]>€5,000,000<[24].
(5) For the purposes of this section, a company shall be associated with another company where—
(a) in the case of that company, or a company which is, or was at any time, its qualifying subsidiary, and
(b) that other company, or a company which is, or was at any time, its qualifying subsidiary,
it could reasonably be considered that—
(i) both companies act in pursuit of a common purpose,
(ii) any person or any group of persons or groups of persons having a reasonable commonality of identity have or had the means or power, either directly or indirectly, to determine the trading activities carried on or to be carried on by both companies, or
(iii) both companies are under the control of any person or group of persons or groups of persons having a reasonable commonality of identity;
but for the purposes of this section a company shall not be considered as associated with another company by reason only of the fact that a subscription for eligible shares in both companies is made by a person or persons having the management of an investment fund designated under section 506 as nominee for any person or group or groups of persons.
(6) In determining for the purposes of the formula in subsection (2) or (3), as the case may be, the amount to which paragraph (b) of the definition of “B” in those formulas relates, account shall not be taken of any amount—
(a) which is subscribed by a person other than an individual who qualifies for relief, or
(b) in respect of which relief is precluded by virtue of section 490.
(7) Where as a consequence of subsection (2) or (3) the giving of relief would be precluded on claims in respect of shares issued to 2 or more individuals, the available relief shall be divided between them respectively in proportion to the amounts which have been subscribed by them for the shares to which their claims relate and which apart from this section would be eligible for relief.
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<[25]
[25]>
491. Qualifying companies (supplemental)
(1) (a) In this subsection ‘‘internationally traded financial services’’ means the services specified in the Schedule to the Industrial Development (Service Industries) Order 2010 (S.I. No. 81 of 2010) other than those falling within the meaning of paragraph (b) or (c) of the definition of ‘‘relevant trading activities’.
(b) A company whose relevant trading activities includes internationally traded financial services shall not be a qualifying company unless a certificate has been provided to it by Enterprise Ireland to the effect that, in the opinion of Enterprise Ireland, the company’s activities are of a kind specified in the Schedule to the Industrial Development (Service Industries) Order 2010 (S.I. No. 81 of 2010).
(2) (a) In this subsection ‘‘tourist traffic undertaking’’ means—
(i) the operation of tourist accommodation facilities for which the National Tourism Development Authority maintains a register in accordance with the Tourist Traffic Acts 1939 to 2003,
(ii) the operation of such other classes of facilities as may be approved of for the purpose of the relief by the Minister for Finance, in consultation with the Minister for Transport, Tourism and Sport, on the recommendation of the National Tourism Development Authority in accordance with specific codes of standards laid down by it, or
(iii) the promotion outside the State of—
(I) one or more tourist accommodation facilities for which the National Tourism Development Authority maintains a register in accordance with the Tourist Traffic Acts 1939 to 2003, or
(II) any of the facilities mentioned in subparagraph (ii).
(b) A company whose relevant trading activities includes one or more tourist traffic undertakings shall not be a qualifying company unless it has submitted to, and has had approved of by, the National Tourism Development Authority a 3 year development and marketing plan in respect of that undertaking or those undertakings, as the case may be, being a plan primarily designed and formulated to increase tourist traffic and revenue from outside the State.
(c) In considering whether to approve of such a plan, the National Tourism Development Authority shall have regard only to such guidelines in relation to such approval as may from time to time be agreed, with the consent of the Minister for Finance, between it and the Minister for Transport, Tourism and Sport, and those guidelines may, without prejudice to the generality of the foregoing, set out—
(i) the extent to which the company’s interests in land and buildings may form part of its total assets,
(ii) specific requirements which have to be met in order to comply with the objective mentioned in paragraph (b), and
(iii) the extent to which the money raised through the issue of eligible shares should be used in promoting outside the State the undertaking or undertakings, as the case may be.
(3) (a) In this subsection—
“energy from renewable sources” means energy from renewable non-fossil sources, that is to say wind, solar, aerothermal, geothermal, hydrothermal and ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogases and includes the development of any facilities for the storage of energy from renewable sources;
“green energy activities” means activities undertaken with a view to producing energy from renewable sources;
“grid connection agreement” means an agreement with the transmission system operator or distribution system operator (both within the meaning of the Electricity Regulation Act 1999), or an offer from the transmission system operator or distribution system operator to enter into an agreement for connection to, or use of, the transmission or distribution system.
(b) For the purposes of this Part, a company carrying on green energy activities shall be deemed to have commenced relevant trading activities when it has made an application for a grid connection agreement.
<[25]
[1]
Substituted by FA98 s34(a)(i)(I). Applies as respects eligible shares issued on or after the 3rd day of December, 1997.
[2]
Substituted by FA98 s34(a)(i)(II). Applies as respects eligible shares issued on or after the 3rd day of December, 1997.
[3]
Substituted by FA00 s19(1)(b). This section shall apply and have effect as on and from 1 May 1998.
[16]
Substituted by FA04 s18(2)(b)(i). Applies as respects in relation to eligible shares issued on or after 5 February 2004.
[17]
Inserted by FA04 s18(2)(b). Applies as respects in relation to eligible shares issued on or after 5 February 2004.
[18]
Substituted by FA07 s19(1)(d)(i)(I). With effect from 1 January 2007 per SI 614 of 2007.
[19]
Substituted by FA07 s19(1)(d)(i)(II). With effect from 1 January 2007 per SI 614 of 2007.
[21]
Substituted by FA11 s33(1)(a). Has effect in respect of shares issued on or after 25 November 2011. Note: FA 12 s26 (2) amends FA 11 s33 and provides: (b) This section does not have effect in respect of shares issued before 25 November 2011 and, for all the purposes of Part 16 in connection with those shares, the Principal Act has effect as if this section had not been enacted. (c) This section does not have effect in respect of shares issued on or after 25 November 2011 and on or before 31 December 2011 where— (i) the company issuing the shares, or (ii) where the shares are acquired by an investment fund, the fund acquiring the shares, elects by notice in writing to the Revenue Commissioners on or before 31 December 2011 that, for all the purposes of Part 16 in connection with those shares, the Principal Act has effect as if this section had not been enacted.
[22]
Substituted by FA14 s27(1)(c)(i). Applies to shares issued on or after 13 October 2015 as per FA15 s18(1)(c).
[23]
Substituted by FA14 s27(1)(c)(ii). Applies to shares issued on or after 13 October 2015 as per FA15 s18(1)(c).
[24]
Substituted by FA14 s27(1)(c)(iii). Applies to shares issued on or after 13 October 2015 as per FA15 s18(1)(c).