First Previous (CHAPTER 2 Miscellaneous) Next (PART 35 Double Taxation Relief)

39 1997

TAXES CONSOLIDATION ACT, 1997

PART 34

Provisions Relating to the Residence of Individuals

Interpretation ( Part 34 ).

[FA94 s149]

818. —In this Part other than in section 825

the Acts” means—

(a) the Tax Acts,

(b) the Capital Gains Tax Acts, and

(c) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,

and any instruments made thereunder;

authorised officer” means an officer of the Revenue Commissioners authorised by them in writing for the purposes of this Part;

present in the State”, in relation to an individual, means the personal presence of the individual in the State;

tax” means any tax payable in accordance with any provision of the Acts.

Residence.

[FA94 s150]

819. —(1) For the purposes of the Acts, an individual shall be resident in the State for a year of assessment if the individual is present in the State—

(a) at any one time or several times in the year of assessment for a period in the whole amounting to 183 days or more, or

(b) at any one time or several times—

(i) in the year of assessment, and

(ii) in the preceding year of assessment,

for a period (being a period comprising in the aggregate the number of days on which the individual is present in the State in the year of assessment and the number of days on which the individual was present in the State in the preceding year of assessment) in the aggregate amounting to 280 days or more.

(2) Notwithstanding subsection (1)(b), where for a year of assessment an individual is present in the State at any one time or several times for a period in the aggregate amounting to not more than 30 days—

(a) the individual shall not be resident in the State for the year of assessment, and

(b) no account shall be taken of the period for the purposes of the aggregate mentioned in subsection (1)(b).

(3) (a) Notwithstanding subsections (1) and, (2), an individual—

(i) who is not resident in the State for a year of assessment, and

(ii) to whom paragraph (b) applies,

may at any time elect to be treated as resident in the State for that year and, where an individual so elects, the individual shall for the purposes of the Acts be deemed to be resident in the State for that year.

(b) This paragraph shall apply to an individual who satisfies an authorised officer that the individual is in the State—

(i) with the intention, and

(ii) in such circumstances,

that the individual will be resident in the State for the following year of assessment.

(4) For the purposes of this section, an individual shall be deemed to be present in the State for a day if the individual is present in the State at the end of the day.

Ordinary residence.

[FA94 s151]

820. —(1) For the purposes of the Acts, an individual shall be ordinarily resident in the State for a year of assessment if the individual has been resident in the State for each of the 3 years of assessment preceding that year.

(2) An individual ordinarily resident in the State shall not for the purposes of the Acts cease to be ordinarily resident in the State for a year of assessment unless the individual has not been resident in the State in each of the 3 years of assessment preceding that year.

Application of sections 17 and 18 (1) and Chapter 1 of Part 3 .

[FA94 s152; FA95 s169(1)]

821. —(1) Where an individual is not resident but is ordinarily resident in the State, sections 17 and 18(1) and Chapter 1 of Part 3 shall apply as if the individual were resident in the State; but this section shall not apply in respect of—

(a) the income of an individual derived from one or more of the following—

(i) a trade or profession, no part of which is carried on in the State, and

(ii) an office or employment, all the duties of which are performed outside the State, and

(b) other income of an individual which in any year of assessment does not exceed £3,000.

(2) In determining for the purposes of subsection (1) whether the duties of an office or employment are performed outside the State, any duties performed in the State, the performance of which is merely incidental to the performance of the duties of the office or employment outside the State, shall be treated as having been performed outside the State.

Split year residence.

[FA94 s153]

822. —(1) For the purposes of a charge to tax on any income, profits or gains from an employment, where during a year of assessment (in this section referred to as “the relevant year”)—

(a)(i) an individual who has not been resident in the State for the preceding year of assessment satisfies an authorised officer that the individual is in the State—

(I) with the intention, and

(II) in such circumstances,

that the individual will be resident in the State for the following year of assessment, or

(ii) an individual who is resident in the State satisfies an authorised officer that the individual is leaving the State, other than for a temporary purpose—

(I) with the intention, and

(II) in such circumstances,

that the individual will not be resident in the State for the following year of assessment,

and

(b) the individual would but for this section be resident in the State for the relevant year,

subsection (2) shall apply in relation to the individual.

(2) (a) An individual to whom paragraphs (a)(i) and (b) of subsection (1) apply shall be deemed to be resident in the State for the relevant year only from the date of his or her arrival in the State.

(b) An individual to whom paragraphs (a)(ii) and (b) of subsection (1) apply shall be deemed to be resident in the State for the relevant year only up to and including the date of his or her leaving the State.

(3) Where by virtue of this section an individual is resident in the State for part of a year of assessment, the Acts shall apply as if—

(a) income arising during that part of the year or, in a case to which section 71 (3) applies, amounts received in the State during that part of the year were income arising or amounts received for a year of assessment in which the individual is resident in the State, and

(b) income arising or, as the case may be, amounts received in the remaining part of the year were income arising or amounts received in a year of assessment in which the individual is not resident in the State.

Deduction for income earned outside the State.

[FA94 s154; FA95 s170(1)]

823. —(1) In this section—

qualifying day”, in relation to an office or employment of an individual, means a day which is—

(a) one of at least 14 consecutive days on which the individual is absent from the State for the purposes of the performance of the duties of the office or employment or of those duties and the duties of other offices or employments of the individual outside the State and which (taken as a whole) are substantially devoted to the performance of such duties, and

(b) one on which the individual concerned is absent from the State at the end of the day,

but no day shall be counted more than once as a qualifying day;

relevant period”, in relation to a year of assessment, means a continuous period of 12 months—

(a) part only of which is comprised in the year of assessment, and

(b) no part of which is comprised in another relevant period;

the specified amount” means an amount determined by the formula—

D × E

_______

365

where—

D is the number of qualifying days in the year of assessment concerned, and

E is all the income, profits or gains from an office, employment or pension whether chargeable under Schedule D or E (including income from offices or employments the duties of which are performed in the State) of an individual in that year.

(2) (a) Subject to paragraph (b), this section shall apply to—

(i) an office of director of a company which is within the charge to corporation tax, or would be within the charge to corporation tax if it were resident in the State, and which carries on a trade or profession,

(ii) an employment other than—

(I) an employment the emoluments of which are paid out of the revenue of the State, or

(II) an employment with any board, authority or other similar body established by or under statute.

(b) This section shall not apply in any case where the income from an office or employment—

(i) is chargeable to tax in accordance with section 71 (3),

(ii) is subject to section 73 , or would be so subject if the employment were deemed to be property situated where the employment is exercised, or

(iii) is income to which section 822 applies.

(3) Where for any year of assessment an individual resident in the State makes a claim in that behalf to and satisfies an authorised officer that—

(a) the duties of an office or employment to which this section applies of the individual are performed wholly or partly outside the State, and

(b) either—

(i) the number of days in that year which are qualifying days in relation to the office or employment (together with any days which are qualifying days in relation to any other such office or employment of the individual), or

(ii) the number of such days referred to in subparagraph (i) in a relevant period in relation to that year,

amounts to at least 90 days,

there shall be deducted from the income, profits or gains from the office or employment to be assessed under Schedule D or E, as may be appropriate, an amount equal to the specified amount.

(4) Notwithstanding anything in the Acts, the income, profits or gains from an office or employment shall for the purposes of this section be deemed not to include any amounts paid in respect of expenses incurred wholly, exclusively and necessarily in the performance of the duties of the office or employment.

Appeals.

[FA94 s156]

824. —(1) An individual aggrieved by a decision of an authorised officer on any question arising under the provisions of this Chapter which require an individual to satisfy an authorised officer on such a question may, by notice in writing to that effect given to the authorised officer within 2 months from the date on which notice of the decision is given to the individual, make an application to have the question heard and determined by the Appeal Commissioners.

(2) Where an application is made under subsection (1), the Appeal Commissioners shall hear and determine the question concerned in the like manner as an appeal made to them against an assessment, and the provisions of the Acts relating to such an appeal (including the provisions relating to the rehearing of an appeal and to the statement of a case for the opinion of the High Court on a point of law) shall apply accordingly with any necessary modifications.

Residence treatment of donors of gifts to the State.

[FA77 s53]

825. —(1) In this section—

the Acts” means—

(a) the Tax Acts,

(b) the Capital Gains Tax Acts, and

(c) the Capital Acquisitions Tax Act, 1976 ;

donor” means an individual who makes a gift to the State;

gift” means a gift of property to the State which, on acceptance of the gift by the Government pursuant to the State Property Act, 1954 , becomes vested pursuant to that Act in a State authority within the meaning of that Act;

Irish tax” means any tax imposed by the Acts;

property” includes interests and rights of any description;

relevant date”, in relation to an individual (being a donor or the spouse of a donor), means the date (not being earlier than the 1st day of September, 1974) on which the individual leaves the State for the purpose of residence (other than occasional residence) outside the State;

tax in that country” means any tax imposed in that country which is identical with or substantially similar to Irish tax;

visits” means—

(a) in relation to a donor, visits by the donor to the State after the relevant date for the purpose of advising on the management of the property which is the subject of the gift, being visits that are in the aggregate less than 182 days in any year of assessment in which they are made, and

(b) in relation to the spouse of a donor, visits by that spouse when accompanying the donor on visits of the kind referred to in paragraph (a).

(2) Where for any year of assessment a person (being a donor or the spouse of a donor) is resident in a country outside the State for the purposes of tax in that country and is chargeable to that tax without any limitation as to chargeability, then, notwithstanding anything to the contrary in the Tax Acts—

(a) as respects the year of assessment in which the relevant date occurs, that person shall not as from the relevant date be regarded as ordinarily resident in the State for the purposes of Irish tax, and

(b) as respects any subsequent year of assessment, in determining whether that person is resident or ordinarily resident in the State for the purposes of Irish tax, visits shall be disregarded.