Taxes Consolidation Act, 1997 (Number 39 of 1997)
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835D Principles for construing rules in accordance with OECD Guidelines.
(1) In this section—
“Article 9(1) of the OECD Model Tax Convention” means the provisions which, at the date of the passing of the Finance Act 2010, were contained in Article 9(1) of the Model Tax Convention on Income and Capital published by the OECD;
“OECD” means the Organisation for Economic Cooperation and Development;
“transfer pricing guidelines” means the guidelines approved on 13 July 1995 by the Council of the OECD (in this definition referred to as the “OECD Council”) as its Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations—
(a) supplemented by—
(i) the report on intangible property and services noted by the OECD Council on 11 April 1996,
(ii) the report on cost contribution arrangements noted by the OECD Council on 24 July 1997, and
(iii) such additional guidance, published by the OECD on or after the date of the passing of the Finance Act 2010, as may be designated by the Minister for Finance for the purposes of this Part by order made under subsection (3),
and
(b) modified by updates approved by the OECD Council on 16 July 2009 [2]>and 22 July 2010 and by the revision approved by the OECD Council on 22 July 2010<[2].
(2) For the purpose of computing profits or gains or losses chargeable to tax under Case I or II of Schedule D, this Part shall be construed to ensure, as far as practicable, consistency between—
(a) the effect which is to be given to section 835C, and
(b) the effect which, in accordance with the transfer pricing guidelines, would be given if double taxation relief arrangements incorporating Article 9(1) of the OECD Model Tax Convention applied to the computation of the profits or gains or losses, regardless of whether such double taxation relief arrangements actually apply,
but this section shall not apply for the purposes of construing this Part to the extent that such application of the section would be contrary to the provisions of double taxation relief arrangements that apply to the computation of those profits or gains or losses.
(3) The Minister for Finance may, for the purposes of this Part, by order designate any additional guidance referred to in paragraph (a)(iii) of the definition of “transfer pricing guidelines” in subsection (1) as being comprised in the transfer pricing guidelines.
(4) Every order made by the Minister for Finance under subsection (3) shall be laid before Dáil Éireann as soon as may be after it is made and, if a resolution annulling the order is passed by Dáil Éireann within the next 21 days on which Dáil Éireann has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
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835D Principles for construing rules in accordance with OECD Guidelines.
(1) In this section—
“Article 9(1) of the OECD Model Tax Convention” means the provisions which, at the date of the passing of the Finance Act 2019, were contained in Article 9(1) of the Model Tax Convention on Income and Capital published by the OECD;
“OECD” means the Organisation for Economic Cooperation and Development;
“transfer pricing guidelines” means the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations published by the OECD on 10 July 2017 supplemented by—
(a) the Guidance for Tax Administrations on the Application of the Approach to Hard-to-Value Intangibles - BEPS Actions 8-10, OECD/G20 Base Erosion and Profit Shifting Project, OECD, Paris
- approved on 4 June 2018 by the group known as the Inclusive Framework on Base Erosion and Profit Shifting,
(b) the Revised Guidance on the Application of the Transactional Profit Split Method: Inclusive Framework on BEPS: Actions 8-10, OECD/G20 Base Erosion and Profit Shifting Project, OECD, Paris
- approved on 4 June 2018 by the group known as the Inclusive Framework on Base Erosion and Profit Shifting, and
(c) such additional guidance, published by the OECD on or after the
date of the passing of the Finance Act 2019, as may be designated by the Minister for Finance for the purposes of this Part by order made under subsection (3).
(2) For the purpose of computing profits or gains or losses chargeable to tax, this Part shall be construed to ensure, as far as practicable, consistency between—
(a) the effect which is to be given to section 835C, and
(b) the effect which, in accordance with the transfer pricing guidelines, would be given if double taxation relief arrangements incorporating Article 9(1) of the OECD Model Tax Convention applied to the computation of the profits or gains or losses, regardless of whether such double taxation relief arrangements actually apply,
but this section shall not apply for the purposes of construing this Part to the extent that such application of the section would be contrary to the provisions of double taxation relief arrangements that apply to the computation of those profits or gains or losses.
(3) The Minister for Finance may, for the purposes of this Part, by order designate any additional guidance referred to in paragraph (c) of the definition of “transfer pricing guidelines” in subsection (1) as being comprised in the transfer pricing guidelines.
(4) Every order made by the Minister for Finance under subsection (3) shall be laid before Dáil Éireann as soon as may be after it is made and, if a resolution annulling the order is passed by Dáil Éireann within the next 21 days on which Dáil Éireann has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
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Inserted by FA10 s42(1). This section applies for chargeable periods beginning on or after 1 January 2011 in relation to any arrangement (within the meaning of s835A(1)) other than any such arrangement the terms of which are agreed before 1 July 2010.
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Substituted by FA19 s27(1). (a) Subsection (1) shall apply for chargeable periods commencing on or after 1 January 2020. (b) Subsection (1) shall not apply as respects an allowance (other than a balancing allowance) to be made to a person in a chargeable period commencing on or after 1 January 2020 in respect of capital expenditure incurred on an asset before 1 January 2020.