Stamp Duty Consolidation Act, 1999 (Number 31 of 1999)
80 Reconstructions or amalgamations of companies.
[FA1965 s31(1) to (3) and (5) to (8); FA1995 s144(2)]
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(1) (a) In this section, unless the context otherwise requires, “shares” includes stock and references to the undertaking of a target company include references to a part of the undertaking of a target company;
(b) In this section references to “acquiring company” are references only to a company with limited liability.
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(1) (a) In this section—
“acquiring company” means, subject to paragraph (b), a company with limited liability;
“shares” includes stock and references to the undertaking of a target company include references to a part of the undertaking of a target company.
(b) In respect of instruments executed on or after 1 June 2005, references to “acquiring company”, “target company” and “company” shall be construed as including a reference to a society registered under the Industrial and Provident Societies Act 1893.
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(2) Where [7]>it is shown to the satisfaction of the Commissioners that<[7] there exists a scheme for the bona fide reconstruction of any company or companies or the amalgamation of any companies and that, in connection with the scheme, there exist the following conditions, that is—
(a) a company with limited liability is to be registered, or a company has been established by Act of the Oireachtas, or the nominal share capital of a company has been increased;
(b) the company (in this section referred to as the “acquiring company”) is to be registered or has been established or has increased its capital with a view to the acquisition of either—
(i) the undertaking of a particular existing company (in this section referred to as the “target company”), or
(ii) not less than 90 per cent of the issued share capital of a target company;
(c) the consideration for the acquisition (except such part of that consideration as consists in the transfer to or discharge by the acquiring company of liabilities of the target company) consists as to not less than 90 per cent of that consideration—
(i) where an undertaking is to be acquired, in the issue of shares in the acquiring company to the target company or to holders of shares in the target company, or
(ii) where shares are to be acquired, in the issue of shares in the acquiring company to the holders of shares in the target company in exchange for the shares held by them in the target company,
then, subject to this section, stamp duty under the following headings in Schedule 1—
(I) “CONVEYANCE or TRANSFER on sale of any stocks or marketable securities”,
(II) “CONVEYANCE or TRANSFER on sale of a policy of insurance or a policy of life insurance where the risk to which the policy relates is located in the State”, or
(III) “CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance”,
shall not be chargeable on any instrument made for the purposes of or in connection with the transfer of the undertaking or shares, or on any instrument made for the purposes of or in connection with the assignment to the acquiring company of any debts, secured or unsecured, of the target company.
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(2A) (a) This subsection applies to any property, an instrument for the conveyance of which is chargeable to stamp duty under or by reference to the heading “CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance” in Schedule 1.
(b) Subsection (2) shall not apply to an instrument made for the purposes of or in connection with the transfer of an undertaking of a target company that includes any property to which this subsection applies, where a conveyance of that property has not been obtained by the target company prior to the date of the execution of the instrument.
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(3) [8]>(a) This section shall not apply to an instrument unless it has, in accordance with section 20, been stamped with a particular stamp denoting either that it is not chargeable with any duty or that it is duly stamped.<[8]
(b) In the case of an instrument made for the purposes of or in connection with a transfer to a company within the meaning of the Companies Act, 1963, subsection (2) shall not apply unless the instrument is either—
(i) executed within a period of 12 months from the date of the registration of the acquiring company or the date of the resolution for the increase of the nominal share capital of the acquiring company, as the case may be, or
(ii) made for the purpose of effecting a conveyance or transfer in pursuance of an agreement which has been filed, or particulars of which have been filed, with the registrar of companies within that period of 12 months.
(4) This section shall not apply unless the scheme of reconstruction or amalgamation is effected for bona fide commercial reasons and does not form part of a scheme or arrangement of which the main purpose, or one of the main purposes, is avoidance of liability to stamp duty, income tax, corporation tax, capital gains tax or capital acquisitions tax.
(5) For the purposes of a claim for exemption under subsection (2), a company which has, in connection with a scheme of reconstruction or amalgamation, issued any unissued share capital shall be treated as if it had increased its nominal share capital.
(6) A company shall not be deemed to be a target company within the meaning of this section unless it is provided by the memorandum of association of, or Act establishing, the acquiring company that one of the objects for which the company is formed is the acquisition of the undertaking of, or shares in, the target company, or unless it appears from the resolution, Act or other authority for the increase of the capital of the acquiring company that the increase is authorised for the purpose of acquiring the undertaking of, or shares in, the target company.
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(7) (a) Where a claim is made for exemption under this section, the Commissioners may require the delivery to them of a statutory declaration in such form as they may direct, made by a solicitor of the Courts of Justice, and of such further evidence (if any) as they may require.
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(b) The powers conferred on the Commissioners by paragraph (a) shall be in addition to and not in substitution for the powers conferred on them by section 20.
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(1) (a) In this section—
“acquiring company” means, subject to paragraph (b), a company with limited liability;
“merger” means a merger undertaken in accordance with Chapter 3 of Part 9 or Chapter 16 of Part 17 of the Companies Act 2014;
“shares” includes stock;
“successor company” and “transferor company” have the meanings given to them by section 461 of the Companies Act 2014;
“undertaking” includes part of an undertaking.
(b) References in this section to a company shall be construed as including references to a society registered under the Industrial and Provident Societies Act 1893.
(2) (a) This subsection applies where there is a scheme for the bona fide reconstruction of any company or the amalgamation of any companies and where, in connection with the scheme, the following conditions apply:
(i) a company with limited liability is to be registered, or a company has been established by Act of the Oireachtas, or the nominal share capital of a company has been increased,
(ii) the company (in this section referred to as the ‘acquiring company’) is to be registered or has been established or has increased its capital with a view to the acquisition of either—
(I) the undertaking of a particular existing company (in this section referred to as the ‘target company’), or
(II) not less than 90 per cent of the issued share capital of a target company,
and
(iii) the consideration for the acquisition (except such part of that consideration as consists in the transfer to or discharge by the acquiring company of liabilities of the target company) consists as to not less than 90 per cent of that consideration—
(I) where an undertaking is to be acquired, in the issue of shares in the acquiring company to the target company or to holders of shares in the target company, or
(II) where shares are to be acquired, in the issue of shares in the acquiring company to the holders of shares in the target company in exchange for the shares held by them in the target company.
(b) For the purposes of paragraph (a)(i) in so far as it relates to a company with limited liability that is to be registered, a company with limited liability does not include a private company limited by shares to which Part 2 of the Companies Act 2014 applies.
(c) For the purposes of paragraph (a)(i), a company that has issued any share capital shall be treated as if it had increased its nominal share capital.
(3) Subsection (2) shall not apply unless—
(a) it is provided by the memorandum of association of the acquiring company or the Act establishing the acquiring company that one of the objects for which the company is formed is the acquisition of the undertaking of, or shares in, the target company, or
(b) it appears from the resolution, Act or other authority for the increase of the capital of the acquiring company that the increase is authorised for the purpose of acquiring the undertaking of, or shares in, the target company.
(4) This subsection applies where—
(a) a merger is undertaken, and
(b) the successor company is a private company limited by shares, a designated activity company or a public limited company that is not an investment company within the meaning of section 2, 963 or 1001, respectively, of the Companies Act 2014.
(5) Where subsection (2) or (4) applies, and subject to this section, stamp duty under the following headings in Schedule 1—
(a) ‘CONVEYANCE or TRANSFER on sale of any stocks or marketable securities.’,
(b) ‘CONVEYANCE or TRANSFER on sale of a policy of insurance or a policy of life insurance where the risk to which the policy relates is located in the State.’, or
(c) ‘CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance.’,
shall not be chargeable on any instrument made for the purposes of or in connection with—
(i) the transfer of the undertaking or shares, or
(ii) the assignment of any debts, whether such debts are debts of the target company assigned to the acquiring company or, as the case may be, debts of the transferor company assigned to the successor company as a result of the merger.
(6) In the case of an instrument made for the purposes of or in connection with a transfer to a company (within the meaning of the Companies Act 2014), subsection (5) shall not apply unless the instrument is executed within the period of 12 months from the date of the registration of the acquiring company or the date of the resolution to increase the nominal share capital of the acquiring company.
(7) (a) This subsection applies to any property, an instrument for the conveyance of which is chargeable to stamp duty under or by reference to the following heading in Schedule 1, namely: ‘CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance.’.
(b) Subsection (5) shall not apply to an instrument made for the purposes of or in connection with the transfer of an undertaking that includes any property to which this subsection applies, where a conveyance of that property has not been obtained by, as the case may be, the target company or the transferor company prior to the date of the execution of the instrument.
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(8) If—
(a) in respect of any claim for exemption from duty under this section which has been allowed, it is subsequently found that [10]>any declaration or other evidence furnished in support of the claim was untrue in any material particular<[10][10]>the exemption was not properly due<[10], or that the conditions specified in [15]>subsection (2)<[15][15]>subsection (5)<[15] are not fulfilled in the reconstruction or amalgamation as actually carried out,
(b) in respect of shares in the acquiring company which have been issued to the target company in consideration of the acquisition, the target company within a period of 2 years from the date, as the case may be, of the registration or establishment, or of the authority for the increase of the capital, of the acquiring company ceases, otherwise than in consequence of reconstruction, amalgamation [13]>or liquidation<[13][13]>, liquidation or merger<[13], to be the beneficial owner of the shares so issued to it, or
(c) in respect of any such exemption which has been allowed in connection with the acquisition by the acquiring company of shares in the target company, the acquiring company within a period of 2 years from the date of its registration or establishment or of the authority for the increase of its capital, as the case may be, ceases, otherwise than in consequence of reconstruction, amalgamation [14]>or liquidation<[14][14]>, liquidation or merger<[14], to be the beneficial owner of the shares so acquired,
then the exemption shall cease to be applicable and stamp duty shall be chargeable in respect of the conveyance or transfer as if [15]>subsection (2)<[15][15]>subsection (5)<[15] had not been enacted together with [3]>interest on the duty, by means of penalty, at the rate of [3]>interest on the duty, [1]>1 per cent per month or part of a month<[1][1]>0.0322 per cent for each day or part of a day<[1] to the day<[3][5]>by means of penalty,<[5], calculated in accordance with section 159D,<[3] on which the duty is paid, in a case to which paragraph (a) applies, from the date of the conveyance or transfer or, in a case to which paragraph (b) applies, from the date the target company ceased to be the beneficial owner of the shares so issued to it or, in a case to which paragraph (c) applies, from the date the acquiring company ceased to be the beneficial owner of the shares so acquired.
(9) If in the case of any scheme of reconstruction or amalgamation the Commissioners are satisfied that at the proper time for making a claim for exemption from duty under subsection (2) there were in existence all the necessary conditions for such exemption other than the condition that not less than 90 per cent of the issued share capital of the target company would be acquired by the acquiring company, the Commissioners may—
(a) if it is proved to their satisfaction that not less than 90 per cent of the issued capital of the target company has under the scheme been acquired within a period of 6 months from—
(i) the last day of the period of one month after the first allotment of shares made for the purposes of the acquisition, or
(ii) the date on which an invitation was issued to the shareholders of the target company to accept shares in the acquiring company,
whichever first occurs,
and
(b) on production of the instruments on which the duty paid has been impressed,
repay such an amount of duty as would have been remitted if that condition had been originally fulfilled.
(10) This section shall apply notwithstanding—
(a) that the acquiring company referred to in this section is incorporated in another [6]>Member State of the European Union<[6][6]>Member State of the European Union or in an EEA State within the meaning of section 80A<[6], or
(b) that the target company referred to in this section is incorporated outside the State,
but only where such acquiring company or target company incorporated outside the State corresponds, under the law of the place where it is incorporated, to an acquiring company or target company, as the case may be, within the meaning of this section and subject to any necessary modifications for the purpose of so corresponding, all the other provisions of this section are met.
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(11) In the case of—
(a) a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014—
(i) the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii) the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
(b) a merger undertaken in accordance with Chapter 16 of Part 17 of the Companies Act 2014, the order made under section 1144 of that Act shall be regarded as a conveyance on sale.
(12) This section shall not apply unless the scheme of reconstruction or amalgamation or the merger is effected for bona fide commercial reasons and does not form part of a scheme or arrangement of which the main purpose, or one of the main purposes, is avoidance of liability to any tax or duty.
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Inserted by FA04 s68(1). This section has effect in relation to instruments executed on or after 20 February 2004.
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Deleted by F(No.2)A08 sched5(part5)(chap2)(7)(f). Note F(No.2)A08 sched5 (part5)(chap 2)(7). As respects paragraph 7 of this Schedule subparagraphs (a) to (aa) (other than subparagraph (c)(i)(I)) of that paragraph have effect as on and from the passing of this Act and to the extent that Chapter 3A (being inserted into Part 47 of the Taxes Consolidation Act 1997 by Part 1 of this Schedule) applies to penalties incurred under the Stamp Duties Consolidation Act 1999 before the passing of this Act which on the passing of this Act have not been paid, it shall not apply to such penalties which are in the form of interest accrued under any provisions of the said Act. The section would be amended by the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2019 (8/2019). However, as Part 6 of this Act is not commenced at the date of consolidation these amendments are not reflected in the text above.
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Deleted by FA12 sched3(21)(a). In effect for all instruments that are executed on or after 7 July 2012 per S.I. No. 228 of 2012.
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Deleted by FA12 sched3(21)(b). In effect for all instruments that are executed on or after 7 July 2012 per S.I. No. 228 of 2012.
[9]
Deleted by FA12 sched3(21)(c). In effect for all instruments that are executed on or after 7 July 2012 per S.I. No. 228 of 2012.
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Substituted by FA12 sched3(21)(d). In effect for all instruments that are executed on or after 7 July 2012 per S.I. No. 228 of 2012.