817DAReferences to ‘specified description’ — classes of transaction for purposes of that expression

(1) For the purposes of this Chapter, unless the context otherwise requires, a reference to a specified description shall be construed as a reference to a class of transaction to which any of subsections (2) to (10) applies.

(2) This subsection applies to a transaction, or any part of a transaction, where, but for the provisions of this Chapter, a promoter or person would, or might reasonably be expected to, wish to keep the transaction or any element of the transaction (including the way in which the transaction is structured) which gives rise to the tax advantage expected to be obtained, confidential from—

(a) the Revenue Commissioners, at any time after the specified date, and a purpose for doing so would be—

(i) to facilitate repeated or continued use of the same, or substantially the same, transaction in the future,

(ii) to prevent the Revenue Commissioners from using the information relating to the transaction to enquire into any return, or

(iii) to prevent the Revenue Commissioners from using the information relating to the transaction to withhold a refund or repayment of, or a payment of, any amount claimed separately from a return under any of the provisions of the Acts,

(b) any other promoter, at any time after the specified date, and a purpose for doing so would be to maintain competitive advantage.

(3) (a) This subsection applies to a transaction, or any part of a transaction, where it might reasonably be expected that a promoter, or a person connected (within the meaning of section 10) with a promoter, of transactions that are the same as, or substantially the same as, the transaction concerned, would, but for the requirements of this Chapter, be able to obtain a premium fee from, or charge a premium fee to, a person implementing such transaction, being a person experienced in receiving services of the type being provided.

(b) For the purposes of this subsection—

“premium fee”, in relation to a transaction, means a fee chargeable by virtue of the transaction from which the tax advantage expected to be obtained arises and which is—

(i) to a significant extent attributable to that tax advantage, or

(ii) to any extent contingent upon the obtaining of that tax advantage;

“fee”, in relation to a transaction, includes any consideration, in whatever form, which is attributable to the provision of the transaction, whether the consideration is provided directly or indirectly.

(4) (a) This subsection applies to a transaction, or any part of a transaction, which is a standardised tax product.

(b) For the purposes of this subsection, a transaction is a standardised tax product if a promoter makes, or intends to make, the transaction available for implementation by more than one person and the transaction is—

(i) one which has, or is intended to have standardised, or substantially standardised, documentation—

(I) the purpose of which is to enable the implementation, by a person, of the transaction, and

(II) the form of which is determined by the promoter and not tailored, to any material extent, to reflect the circumstances of the person implementing the transaction,

and

(ii) one which requires the person implementing it to enter into a specific transaction, or series of transactions, that are standardised, or substantially standardised, in form.

(c) Notwithstanding paragraphs (a) and (b) and without prejudice to subsection (2) or (3), a transaction shall not be a standardised tax product where it is a transaction of a kind specified in the Schedule to regulations made under section 817Q.

(5) This subsection applies to a transaction, or any part of a transaction, where the promoter expects more than one individual to implement the same, or substantially the same, transaction and the transaction is such that an informed observer, having examined it, could reasonably conclude—

(a) that a main outcome of the transaction that could be expected for some or all of the individuals participating in it is the provision of losses, and

(b) that those individuals would be expected to use such losses to reduce their liability to income tax or capital gains tax.

(6) (a) This subsection applies to a transaction, or any part of a transaction, where one of the parties to the transaction is a company that has, or expects to have, unrelieved losses at the end of an accounting period and an informed observer, having examined the transaction, could reasonably conclude that a main benefit of the transaction is—

(i) that the company transfers those losses to another party who would be expected to use them to reduce its corporation tax liability, or

(ii) that the company is able to use those losses to reduce its corporation tax liability.

(b) For the purposes of this subsection, ‘unrelieved losses at the end of an accounting period’ means trading losses in respect of which relief could not have been given (but for the transaction) for that, or any previous, accounting period.

(7) (a) This subsection applies to a transaction, or any part of a transaction, where a tax advantage is obtained, or might be expected to be obtained, by virtue of a transaction, or any part of a transaction, by way of a reduction in, or deferment of, liability to tax, by the employer or the employee or by any other person by reason of the employee’s employment—

(i) where the tax advantage relates to employment income, in any year of assessment, or

(ii) in any other case, in any period of account.

(b) For the purposes of this subsection “employment income” means salaries, fees, wages, perquisites, benefits or profits (by whatever name called, including expenses) from an office or employment.

(c) Notwithstanding paragraph (a) and without prejudice to subsection (2) or (3), a transaction shall not be a transaction of a kind described in this subsection where it is a transaction of a kind specified in the Schedule to regulations made under section 817Q.

(8) (a) This subsection applies to a transaction where, as a consequence of the transaction, or part of the transaction, a person who would otherwise incur, or be expected to incur, a liability to income tax in any tax year, will—

(i) incur, or be expected to incur, a lesser or nil liability to income tax chargeable in that year, and

(ii) acquire an asset, the disposal of which would, in principle, give rise to a chargeable gain.

(b) For the purposes of paragraph (a) a chargeable gain includes a gain on the disposal of assets that are exempt from capital gains tax or relieved from capital gains tax under any of the provisions of the Acts.

(c) Notwithstanding paragraph (a) and without prejudice to subsection (2) or (3), a transaction shall not be a transaction of a kind described in this subsection where it is a transaction of a kind specified in the Schedule to regulations made under section 817Q.

(9) This subsection applies to a transaction where, as a consequence of the transaction, or part of a transaction, a person who would otherwise incur, or be expected to incur, a liability to income tax in any tax year will—

(a) incur, or be expected to incur, a lesser or nil liability to income tax chargeable in that year, and

(b) be deemed to take a gift by virtue of section 5(1) of the Capital Acquisitions Tax Consolidation Act 2003.

(10) (a) This subsection applies to a transaction, or part of a transaction, where a party to that transaction is a trustee of a discretionary trust.

(b) Notwithstanding paragraph (a) and without prejudice to subsection (2) or (3), a transaction shall not be a transaction of a kind described in this subsection where it is a transaction of a kind specified in the Schedule to regulations made under section 817Q.