134A Penalties.

(1) In this section—

“carelessly” means failure to take reasonable care;

“liability to duty” means a liability to the amount of the difference specified in subsection (7), (8) or (9) arising from any matter referred to in subsections (2) and(4);

“instruction”, “relevant system” and “system-member” have each the same meaning as they have, respectively, in section 68(2);

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“person” means—

(a) for the purposes of subsections (2)(b) and (4)(b), a system-member, and

(b) for the purposes of subsections (2)(c) and (4)(c), an accountable person where an electronic return or a paper return is caused to be delivered, or is delivered, to the Commissioners;

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“person” means—

(a) for the purposes of subsections (2)(b) and (4)(b), a system-member,

(b) for the purposes of subsections (2)(c) and (4)(c), an accountable person where an electronic return or a paper return is caused to be delivered, or is delivered, to the Commissioners, and

(c) for the purposes of subsection (2)(d), an accountable person where an electronic return or a paper return, which is required to be delivered, is not delivered to the Commissioners;

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“prompted qualifying disclosure”, in relation to a person, means a qualifying disclosure that has been made to the Commissioners or to a Revenue officer in the period between—

(a) the date on which the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to duty of that person will start, and

(b) the date that the investigation or inquiry starts;

“qualifying disclosure”, in relation to a person, means—

(a) in relation to a penalty referred to in subsection (3), a disclosure that the Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to duty that gives rise to a penalty referred to in subsection (3), and full particulars of all matters occasioning any liability to tax that gives rise to a penalty referred to in section 1077E(4) of the Taxes Consolidation Act 1997, section 116(4) of the Value-Added Tax Consolidation Act 2010 and the application of section 1077E(4) of the Taxes Consolidation Act 1997 to the Capital Acquisitions Tax Consolidation Act 2003, and

(b) in relation to a penalty referred to in subsection (5), a disclosure that the Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to duty that gives rise to a penalty referred to in subsection (5),

made in writing to the Commissioners or to a Revenue officer and signed by or on behalf of that person and that is accompanied by—

(i) a declaration, to the best of that person’s knowledge, information and belief, made in writing that all matters contained in the disclosure are correct and complete, and

(ii) a payment of the tax and duty payable in respect of any matter contained in the disclosure and the interest on late payment of that tax and duty;

“Revenue officer” means an officer of the Commissioners;

“unprompted qualifying disclosure”, in relation to a person, means a qualifying disclosure that the Revenue Commissioners are satisfied has been voluntarily furnished to them—

(a) before an investigation or inquiry had been started by them or by a Revenue officer into any matter occasioning a liability to duty of that person, or

(b) where the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to duty of that person will start, before that notification.

(2) Where any person deliberately—

(a) executes any instrument in which all the facts and circumstances affecting the liability of such instrument to duty, or the amount of the duty with which such instrument is chargeable, are not fully and truly set forth in the instrument or in any statement to which section 8(2) relates,

(b) enters or causes to be entered an incorrect instruction in a relevant system and such incorrect instruction gives rise to an underpayment of stamp duty, or results in a claim for exemption from duty to which there is no entitlement, ^[6]>or^<[6]

(c) causes an incorrect electronic return or a paper return to be delivered, or delivers an incorrect electronic return or a paper return, to the Commissioners which does not reflect all the facts and circumstances affecting the liability of such instrument to duty or the amount of the duty with which such instrument is chargeable that are required by the Commissioners to be disclosed on ^[7]>such return,^<[7][7]>such return, or^<[7]

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(d) fails to deliver or cause to be delivered an electronic return or a paper return which is required to be delivered to the Commissioners,

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then that person shall incur a penalty of €1,265 and a further penalty.

(3) The further penalty referred to—

(a) in subsection (2) in relation to paragraph (a) of that subsection, shall be the amount specified in subsection (7),

(b) in subsection (2) in relation to paragraph (b) of that subsection, shall be the amount specified in subsection (8), ^[9]>and^<[9]

(c) in subsection (2) in relation to paragraph (c) of that subsection, shall be the amount specified in ^[10]>subsection (9)^<[10][10]>subsection (9), and^<[10],

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(d) in subsection (2) in relation to paragraph (d) of that subsection, shall be the amount specified in subsection (9A),

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reduced, where the person who incurred the penalty co-operated fully with any investigation or inquiry started by the Commissioners or by a Revenue officer into any matter occasioning a liability to duty of that person, to—

(i) 75 per cent of that amount where paragraph (ii) or (iii) does not apply,

(ii) 50 per cent of that amount where a prompted qualifying disclosure has been made by the person, or

(iii) 10 per cent of that amount where an unprompted qualifying disclosure has been made by the person.

(4) Where any person carelessly but not deliberately—

(a) executes any instrument in which all the facts and circumstances affecting the liability of such instrument to duty, or the amount of the duty with which such instrument is chargeable, are not fully and truly set forth in the instrument or in any statement to which section 8(2) relates,

(b) enters or causes to be entered an incorrect instruction in a relevant system and such incorrect instruction gives rise to an underpayment of duty, or results in a claim for exemption from duty to which there is no entitlement, ^[12]>or^<[12]

(c) causes an incorrect electronic return or a paper return to be delivered, or delivers an incorrect electronic return or a paper return, to the Commissioners which does not reflect all the facts and circumstances affecting the liability of such instrument to duty or the amount of the duty with which such instrument is chargeable that are required by the Commissioners to be disclosed on ^[13]>such return^<[13][13]>such return, or^<[13],

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(d) fails to deliver or cause to be delivered an electronic return or a paper return which is required to be delivered to the Commissioners,

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then that person shall incur a penalty of €1,265 and a further penalty.

(5) (a) The further penalty referred to—

(i) in subsection (4) in relation to paragraph (a) of that subsection, shall be the amount specified in subsection (7),

(ii) in subsection (4) in relation to paragraph (b) of that subsection, shall be the amount specified in subsection (8), and

(iii) in subsection (4) in relation to paragraph (c) of that subsection, shall be the amount specified in subsection (9),

reduced to 40 per cent where the excess referred to in subparagraph (I) of paragraph (b) applies and to 20 per cent in other cases.

(b) Where the person who incurred the penalty co-operated fully with any investigation or inquiry started by the Commissioners or by a Revenue officer into any matter occasioning a liability to duty of that person the further penalty referred to—

(i) in subsection (4) in relation to paragraph (a) of that subsection, shall be the amount specified in subsection (7),

(ii) in subsection (4) in relation to paragraph (b) of that subsection, shall be the amount specified in subsection (8), and

(iii) in subsection (4) in relation to paragraph (c) of that subsection, shall be the amount specified in subsection (9),

reduced—

(I) where the amount of the difference referred to in subsection (7), (8) or (9), as the case may be, exceeds 15 per cent of the amount referred to in subsection (7)(b), (8)(b) or (9)(b), as the case may be, to—

(A) 30 per cent of the amount of the difference (in clauses (B) and (C) referred to as “that amount”) where clause (B) or (C) does not apply,

(B) 20 per cent of that amount where a prompted qualifying disclosure has been made by that person, or

(C) 5 per cent of that amount where an unprompted qualifying disclosure has been made by that person,

or

(II) where the amount of the difference referred to in subsection (7), (8) or (9), as the case may be, does not exceed 15 per cent of the amount referred to in subsection (7)(b), (8)(b) or (9)(b), as the case may be, to—

(A) 15 per cent of the amount of the difference (in clauses (B) and (C) referred to as “that amount”) where clause (B) or (C) does not apply,

(B) 10 per cent of that amount where a prompted qualifying disclosure has been made by that person, or

(C) 3 per cent of that amount where an unprompted qualifying disclosure has been made by that person.

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(5A) (a) The further penalty referred to in subsection (4) in relation to paragraph (d) of that subsection, shall be the amount specified in subsection (9A) reduced to 40 per cent.

(b) Where the person who incurred the penalty cooperated fully with any investigation or enquiry started by the Commissioners or by a Revenue officer into any matter occasioning a liability to duty of that person, the further penalty referred to in subsection (4) in relation to paragraph (d) of that subsection, shall be the amount specified in subsection (9A) reduced to—

(i) 30 per cent of that amount where subparagraph (ii) or (iii) does not apply,

(ii) 20 per cent of that amount where a prompted qualifying disclosure has been made by that person, or

(iii) 5 per cent of that amount where an unprompted qualifying disclosure has been made by that person.

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(6) Where any person neither deliberately nor carelessly—

(a) executes an instrument and it comes to that person’s notice that the instrument or any statement to which section 8(2) relates does not fully and truly set forth all the facts and circumstances,

(b) enters or causes to be entered an instruction in a relevant system and it comes to that person’s notice that the instruction was an incorrect instruction, ^[16]>or^<[16]

(c) causes to be delivered or delivers an electronic return or a paper return and it comes to that person’s notice that the electronic return or paper return does not reflect all the facts and circumstances that are required by the Commissioners to be disclosed on ^[17]>such return^<[17][17]>such return, or^<[17],

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(d) fails to deliver or cause to be delivered an electronic return or a paper return which is required to be delivered to the Commissioners,

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then, unless the error is remedied without unreasonable delay, the person shall be treated for the purposes of this section as having acted deliberately.

(7) The amount referred to in ^[2]>subsections (3)(a) and (5)(a)^<[2][2]>subsection (3)(a) and paragraphs (a)(i) and (b)(i) of subsection (5)^<[2] shall be the amount of the difference between—

(a) the amount of duty payable in respect of the instrument based on the facts and circumstances set forth and delivered, and

(b) the amount of the duty which would have been the amount so payable if the instrument and any accompanying statement had fully and truly set forth all the facts and circumstances referred to in subsections (1) and (2) of section 8.

(8) The amount referred to in ^[3]>subsections (3)(b) and (5)(b)^<[3][3]>subsection (3)(b) and paragraphs (a)(ii) and (b)(ii) of subsection (5)^<[3] shall be the amount of the difference between—

(a) the duty so paid (if any), and

(b) the duty which would have been payable if the instruction had been entered correctly.

(9) The amount referred to in ^[4]>subsections (3)(c) and (5)(c)^<[4][4]>subsection (3)(c) and paragraphs (a)(iii) and (b)(iii) of subsection (5)^<[4] shall be the amount of the difference between—

(a) the amount of duty payable in respect of the instrument based on the facts and circumstances disclosed on such return, and

(b) the amount of duty that would have been the amount so payable if all the facts and circumstances affecting the liability of such instrument to duty or the amount of the duty with which such instrument is chargeable, that are required to be disclosed on such return by the Commissioners, had been disclosed to them.

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(9A) The amount referred to in subsection (3)(d) and in subsection (5A) is the amount of duty that would have been payable if a return had been delivered.

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(10) Where a second qualifying disclosure is made by a person within 5 years of such person’s first qualifying disclosure, then as regards matters pertaining to the second disclosure—

(a) in relation to subsection (3)—

(i) paragraph (ii) shall apply as if “75 per cent” were substituted for “50 per cent”, and

(ii) paragraph (iii) shall apply as if “55 per cent” were substituted for “10 per cent”, and

(b) in relation to subparagraph (I) of subsection (5)(b)—

(i) clause (B) shall apply as if “30 per cent” were substituted for “20 per cent”, and

(ii) clause (C) shall apply as if “20 per cent” were substituted for “5 per cent”.

(11) Where a third or subsequent qualifying disclosure is made by a person within 5 years of such person’s second qualifying disclosure, then as regards matters pertaining to the third or subsequent disclosure, as the case may be—

(a) the further penalty referred to in paragraphs (a), (b) and (c) of subsection (3) shall not be reduced, and

(b) the reduction referred to in sub-paragraph (I) of subsection (5)(b) shall not apply.

(12) A disclosure, in relation to a person, shall not be a qualifying disclosure where—

(a) before the disclosure is made, a Revenue officer had started an inquiry or an investigation into any matter contained in that disclosure and had contacted or notified the person, or a person representing the person, in this regard, or

(b) matters contained in the disclosure are matters—

(i) that have become known or are about to become known, to the Commissioners through their own investigations or through an investigation conducted by a statutory body or agency,

(ii) that are within the scope of an inquiry being carried out wholly or partly in public, or

(iii) to which the person who made the disclosure is linked, or about to be linked, publicly.

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(13)(a)In this subsection the expressions “liability to tax or duty”, “offshore matters”, “penalty” and “specified penalty” have the same meanings as in section 1077E(15A)(a) (inserted by section 56(1) of the Finance Act 2016) of the Taxes Consolidation Act 1997.

(b) A disclosure in relation to a person made on or after 1 May 2017 shall not be a qualifying disclosure where—

(i) any matters contained in the disclosure relate directly or indirectly to offshore matters, and

(ii) in any other case, the person, before the date the disclosure is made, has offshore matters occasioning a liability to tax or duty that are known or become known at any time to the Commissioners or any of their officers and the person is liable to a penalty other than a specified penalty in relation to those matters.

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(14) Subject to section 1077D(2) of the Taxes Consolidation Act 1997, proceedings for the recovery of any penalty under this section shall not be out of time by reason that they are commenced after the time allowed by section 1063 of that Act as applied by section 133.

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