1035A Relieving provision to section 1035.

(1) In this section—

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“AIF” has the same meaning as in section 747G;

“AIFM” has the same meaning as in section 747G;

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“authorised agent” means—

(a) a person acting as an investment business firm, or an authorised member firm—

(i) under an authorisation given by the Central Bank of Ireland under section 10(1) of the Investment Intermediaries Act 1995 or, as the case may be, ^[10]>section 18 of the Stock Exchange Act 1995^<[10][10]>Regulation 8 of the European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No. 375 of 2017)^<[10] and not subsequently revoked, or

(ii) under an authorisation, which corresponds to either of the authorisations referred to in subparagraph (i), given by a competent authority in ^[11]>another Member State^<[11][11]>a relevant Member State (within the meaning of section 835I(1))^<[11] for the purpose of ^[12]>Council Directive 93/22/EEC of 10 May 1993^1<[12][12]>Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014^1<[12] as amended or extended from time to time, and not subsequently ^[2]>revoked,^<[2][2]>revoked,^<[2][13]>and which provides one, or more, investment service through a branch or agency in the State pursuant to the European Union (Markets in Financial Instruments) Regulations 2017,^<[13]

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or

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(b) a credit institution duly authorised by virtue of Directive No. 2000/12/EC of 20 March 2000² which provides investment business services and in so doing does not exceed the terms of its authorisation and that authorisation has not been ^[3]>revoked,^<[3][8]>[3]>revoked, or^<[3]<[8][8]>revoked,^<[8]

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(c) a company—

(i) authorised under any laws of the State that implement the relevant Directives, and

(ii) which carries on a trade which consists of or includes the management of unit trusts, common contractual funds or investment companies, or any combination thereof, each of which is a relevant UCITS,

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or

(d) an AIFM authorised—

(i)under any laws of the State which implement the relevant AIFM Directives, or

(ii)under the laws of an EEA state and which manages one, or more than one, AIF through a branch or agency in the State,

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and “authorisation” shall be construed accordingly;

“authorised member firm” has the meaning assigned to it by section 3 of the Stock Exchange Act 1995;

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“branch or agency” has the same meaning as in section 4;

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“competent authority” has the meaning assigned to it by section 2 of the Investment Intermediaries Act 1995;

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“EEA state” has the same meaning as in section 747B;

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“financial trade” means a trade exercised in the State by a non-resident person through an authorised agent under and within the terms of the authorised agent’s authorisation;

“investment business firm” has the meaning assigned to it by section 2 of the Investment Intermediaries Act 1995;

“investment business services” has the meaning assigned to it by section 2 of the Investment Intermediaries Act ^[5]>1995^<[5][5]>1995^<[5][5]>.^<[5][5]>;^<[5]

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“relevant AIFM Directives” has the same meaning as in section 747G;

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“relevant Directives” means Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009³ on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), and any Directive amending that Directive;

“relevant UCITS” means an undertaking for collective investment in transferable securities—

(i) to which the relevant Directives apply, and

(ii) which is formed under the laws of any of the Member States of the European Union other than the State.

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(2) For the purposes of this section—

(a) an authorised agent, through whom a non-resident person exercises a financial trade in the State, is independent in relation to the non-resident person for a chargeable period if throughout the chargeable period—

(i) the authorised agent does not otherwise act on behalf of the non-resident person,

(ii) the authorised agent, when acting on behalf of the non-resident person, does so in an independent capacity,

(iii) the authorised agent, when acting on behalf of the non-resident person, does so in the ordinary course of the authorised agent’s business, and

(iv) the requirements referred to in subsection (4), in relation to the financial trade, are satisfied,

(b) an authorised agent shall not be regarded as acting in an independent capacity when acting on behalf of a non-resident person unless, having regard to its legal, financial and commercial characteristics, the relationship between them is a relationship between persons carrying on independent businesses that deal with each other at arm’s length, and

(c) references to an amount of profits or gains of a trade, exercised in the State by a non-resident person, to which another person has a beneficial entitlement are references to the amount of profits or gains of the trade to which the other person has, or may acquire, a beneficial entitlement by virtue of—

(i) any interest of the other person (whether or not an interest giving a right to an immediate payment of a share of the profits or gains of the trade) in property in which the whole or any part of the profits or gains of the trade are represented, or

(ii) any interest of the other person in, or other rights in relation to, the non-resident person.

(3) Notwithstanding section 18, a non-resident person shall not be assessable and chargeable to income tax in respect of any profits or gains arising or accruing for a chargeable period to the non-resident person from a financial trade exercised in the State solely through an authorised agent who throughout the chargeable period is independent in relation to the non-resident person.

(4) The requirements of this subsection are satisfied, at any time, in relation to a financial trade exercised in the State by a non-resident person through an authorised agent where at that time—

(a) the aggregate of the amount of the profits or gains of the trade, to which the authorised agent and persons, who are both resident in the State and connected with the authorised agent, have a beneficial entitlement, does not exceed 20 per cent of the amount of the profits or gains of the trade, or

(b) the Revenue Commissioners are satisfied that it is the intention of the authorised agent, that the aggregate of the amount of the profits or gains of the trade, to which the authorised agent and persons who are resident in the State and connected with the authorised agent have beneficial entitlement, does not exceed 20 per cent of the amount of the profits or gains of the trade and that the reasons for the failure to fulfill that intention, at that time, are of a temporary nature.

(5) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions authorised by this section to be performed or discharged by them.