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39 1997

TAXES CONSOLIDATION ACT, 1997

CHAPTER 9

Miscellaneous provisions

Apportionment of profits.

[ITA67 s107; FA69 s65(1) and Sch5 PtI]

107. —(1) Where in the case of any profits or gains chargeable under Case I, II or IV of Schedule D it is necessary, in order to determine the profits or gains or losses of any year of assessment or other period, to divide and apportion to specific periods the profits or gains or losses for any period for which the accounts have been made up, or to aggregate any such profits or gains or losses or any apportioned parts of such profits or gains or losses, it shall be lawful to make such division and apportionment or aggregation.

(2) Any apportionment under this section shall be made in proportion to the number of months or fractions of months in the respective periods.

Statement of profits.

[ITA67 s68(1)]

108. — Every statement of profits to be charged under Schedule D which is made by any person—

(a) on that person's own account, or

(b) on account of another person for whom that person is chargeable, or who is chargeable in that person's name,

shall include every source of income so chargeable.

Payments in respect of redundancy.

[FA68 s37(1) and (3) to (7); FA74 s86 and Sch2 PtI; CTA76 s140(1) and Sch2 PtI par30; FA77 s42 and Sch1 PtIV par2]

109. —(1) In this section, “lump sum” and “rebate” have the same meanings respectively as in the Redundancy Payments Act, 1967 .

(2) Where a lump sum is paid by an employer in respect of employment wholly in a trade or profession carried on by the employer and within the charge to income tax or corporation tax, the amount of the lump sum shall (if not otherwise so allowable) be allowable as a deduction in computing for the purposes of Schedule D the profits or gains or losses of the trade or profession, but if it is so allowed by virtue of this section the amount of the rebate recoverable shall (if it is not otherwise to be so treated) be treated as a receipt to be taken into account in computing those profits or gains and, if the lump sum was paid after the discontinuance of the trade or profession, the net amount so deductible shall be treated as if it were a payment made on the last day on which the trade or profession was carried on.

(3) Where a lump sum is paid by an employer in respect of employment wholly in a business carried on by the employer and expenses of management of the business are eligible for relief under section 83 or 709 , the amount by which the lump sum exceeds the amount of the rebate recoverable shall (if not otherwise so allowable) be allowable as expenses of management eligible for relief under that section and, if the lump sum was paid after the discontinuance of the business, the net amount so allowable shall be treated as if it were expenses of management incurred on the last day on which the business was carried on.

(4) Where a lump sum is paid by an employer in respect of employment wholly in maintaining or managing premises and the expenses of maintaining or managing the premises were deductible under section 97 , the amount by which the lump sum exceeds the amount of the rebate recoverable shall (if not otherwise allowable under that section) be treated for the purposes of section 97 as a payment made by the employer in respect of the maintenance or management of the premises and, if the payment was made after the latest time when it could be taken into account under section 97 as a payment in respect of the maintenance or management of the property, it shall be treated as having been made at that time.

(5) Relief shall not be given under subsections (2) to (4), or otherwise, more than once in respect of any lump sum and, if the employee was being employed by the employer in such a way that different parts of the employee's remuneration fell to be treated for income tax purposes in different ways, the amount (in this subsection referred to as “the excess amount”) by which the lump sum exceeds the amount of the rebate recoverable shall be apportioned to the different capacities in which the employee was employed, and subsections (2) to (4) shall apply separately to the employment in those capacities, and by reference to the apportioned part of the excess amount, instead of by reference to the full amount of the lump sum and the full amount of the rebate.

(6) Where under section 32 of the Redundancy Payments Act, 1967 , a payment of the whole or part of a lump sum is made by the Minister for Enterprise, Trade and Employment, the payment shall, in so far as the employer has reimbursed that Minister, be deemed for the purposes of this section to have been made by the employer.

Securitisation of assets.

[FA91 s31; FA96 s55(1)]

110. —(1) In this section—

qualifying asset” means—

(a) in the case of a qualifying company which is a qualified company (within the meaning of section 446 ), an asset—

(i) denominated in a foreign currency which consists of, or of an interest in or a contractual right to, any loan, lease, trade or consumer receiveable or other debt or receiveable whether secured or unsecured, and

(ii) of a person (in this section referred to as “the originator”), being any government, public or local authority, company or other body corporate which—

(I) is not resident in the State, and

(II) (A) is not carrying on a trade in the State through a branch or agency, or

(B) is carrying on a trade in the State through a branch or agency and the asset was not created, acquired or held by or in connection with the branch or agency,

and

(b) in any other case, a loan made by a company (in this section referred to as “the original lender”) on the security of a mortgage of a freehold or leasehold estate or interest in the ordinary course of a trade carried on by it which consists of or includes the lending of money on such security;

qualifying company” means a company resident in the State which carries on a business of the management of qualifying assets which it acquired from the original lender or original lenders or the originator or originators, as the case may be, and does not carry on any other business, apart from activities which are ancillary to the business of the management of those qualifying assets, but a company shall not be a qualifying company if any transaction is carried out by it otherwise than by means of a bargain made at arm's length.

(2) For the purposes of the Tax Acts—

(a) activities carried out in the course of a business carried on by a qualifying company shall be deemed to be activities carried out in the course of a trade, the profits or gains of which are chargeable to tax under Case I of Schedule D,

(b) there shall be deducted as an expense of the trade the amount, in so far as it is not—

(i) otherwise deductible, or

(ii) recoverable from the original lender or the originator, as the case may be, or under any insurance, contract of indemnity or otherwise howsoever,

of any debt which is proved to the satisfaction of the inspector to be bad and of a doubtful debt to the extent that it is estimated to be bad; but, in the case of a company referred to in paragraph (b) of the definition of “qualifying asset”, the amount of the debt shall not be deducted under this paragraph unless it would have been deductible as an expense of the trade of the original lender if that debt had been proved or estimated to be bad before it was acquired by the qualifying company, and

(c) where at any time an amount or part of an amount which has been deducted as an expense under paragraph (b) is recovered or is no longer estimated to be bad, the amount which has been so deducted shall, in so far as it is recovered or is no longer estimated to be bad, be treated as trading income of the trade at that time.

Allowance to owner of let mineral rights for expenses of management of minerals.

[ITA67 s553; F(MP)A68 s3(2) and Sch PtI and s3(5) and Sch PtIV; FA81 s9(c)]

111. —(1) (a) Where for any year of assessment rights to work minerals in the State are let, the lessor shall be entitled on making a claim in that behalf to be repaid so much of the income tax paid by such lessor by deduction or otherwise in respect of the rent or royalties for that year as is equal to the amount of the tax on any sums proved to have been wholly, exclusively and necessarily disbursed by such lessor as expenses of management or supervision of those minerals in that year.

(b) Notwithstanding paragraph (a), no repayment of tax under that paragraph shall be made—

(i) except on proof of payment of tax on the aggregate amount of the rent or royalties, or

(ii) if, or to such extent as, the expenses of management or supervision have been otherwise allowed as a deduction in computing income for the purposes of income tax.

(2) Notice of any claim under this section together with the particulars of the claim shall be given in writing within 24 months after the expiration of the year of assessment in respect of which the claim is made, and where the inspector objects to such claim the Appeal Commissioners shall hear and determine the claim in the like manner as in the case of an appeal to them against an assessment under Schedule D, and the provisions of the Income Tax Acts relating to the statement of a case for the opinion of the High Court on a point of law shall apply.