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Ireland’s Retroactive Exchange of Information Regime
The Irish Revenue Commissioners ("Revenue") recently confirmed that Ireland’s spontaneous exchange of information regime (the "Regime") will apply to certain tax rulings issued as far back as 1 January 2010. Taxpayers should review confirmations and opinions received from Revenue on international tax matters since that date to determine the extent of what may be exchanged.
The Regime is based on a combination of the framework proposed by the OECD under BEPS Action 5 (the "OECD Framework") and the EU Council Directive 2015/2376 (the "EU Rules"). In general, the Regime applies to rulings relating to transactions with a cross-border impact such as:
(i) cross-border rulings relating to preferential regimes (ie, the knowledge development box);
(ii) cross-border advance pricing agreements ("APA");
(iii) cross-border rulings that provide for a unilateral downward adjustment to taxable profits that is not reflected in the taxpayer’s accounts;
(iv) rulings regarding the existence of, and attribution of profits to, a permanent establishment; and
(v) rulings in respect of cross-border flows of funds or income through a domestic entity.
What is a Ruling?
A ruling generally includes all of Revenue’s taxpayer specific communications with companies and entities in respect of direct taxes, including opinions and confirmations issued on the application of tax law to particular transactions, events or activities. Advance approvals and clearances required by legislation or Revenue administrative practices and opinions issued in response to expressions of doubt or in the course of a Revenue audit may also be treated as rulings and subject to the Regime.
The extent of the Regime’s retroactivity depends on whether a ruling is subject to the OECD Framework or the EU Rules. The OECD Framework applies with effect from 1 April 2016 to all relevant rulings issued or amended on or after 1 January 2010 which were still in effect on 1 January 2014. The EU Rules will apply retrospectively to relevant rulings issued or amended on or after 1 January 2012 which were still in effect on 1 January 2014 (the Irish domestic provisions implementing the EU Rules are expected to be detailed in Finance Act 2016 later this year).(1) Rulings relating to one-off transactions (eg, deferral of capital gains) within this look-back period will not be regarded as having been still in effect.
All relevant rulings issued or amended by Revenue since 1 January 2014 will be subject to exchange of information under the Regime, regardless of whether they remain in effect.
Timing of Exchange
Rulings issued or amended prior to 1 April 2016 which are subject to exchange of information under the OECD Framework must be exchanged by 31 December 2016. Rulings issued or modified since 1 April 2016 must be exchanged under the OECD Framework as soon as possible but within three months of delivery to the competent authority.
Rulings and opinions issued or amended between 1 January 2012 and 31 December 2016 which are subject to exchange of information under the EU Rules must be exchanged by 1 January 2018. A ruling issued on or after 1 January 2017 must be exchanged under EU Rules within three months of the half calendar-year in which it was provided.
The OECD Framework and EU Rules are not mutually exclusive and as such a ruling may be subject to exchange of information under both measures.
Recipients of Rulings
Information exchanged under the OECD Framework will be provided to tax authorities in the country of residence of relevant related parties and parent companies that have entered into arrangements with Ireland to spontaneously exchange information (ie, double tax treaties, tax information exchange agreements or the Convention on Mutual Administrative Assistance in Tax Matters). The countries with which Revenue may exchange information under the OECD Framework include 20 EU Member States, Australia, Brazil, Canada, India, Japan, Russia, South Korea, Switzerland and the US.(2)
Information exchanged under the EU Rules will be provided to all other EU Member States. It is important to note that the EU Rules apply to all tax rulings and opinions falling within the above categories issued by EU Member States and not just to intra-EU situations.
Information to be Exchanged
In order to satisfy the requirements of exchange of information under the Regime, Revenue will be obliged to exchange:
- the identity and corporate group of the relevant taxpayer;
- the date, duration and reference number of the opinion;
- the quantum involved in the transaction; and
- details of the taxpayer’s main business activities, annual turnover and the most recent net profit and loss figures available.
Revenue is also obliged to include a summary of the ruling, excluding commercially sensitive information. Under the OECD Framework, Revenue must identify countries with which the information will be exchanged. Under the EU Rules, Revenue will identify Member State likely to be concerned with the opinion along with details of entities likely to be affected and, in the case of an APA, a description of transfer pricing methods and criteria used.
Exchange of information is a sensitive and topical issue globally and, accordingly, the increased certainty and clarity in this area is welcomed. Taxpayers with rulings within the remit of the Regime will be notified by Revenue of any exchange. Importantly, information communicated by Revenue will be subject to confidentiality protections provided for under EU law or the applicable legal instrument, as appropriate.
Taxpayers should be aware of the potential exchange of information implications for all correspondence with Revenue on cross-border matters. All necessary precautions should be taken to ensure that sensitive information submitted to Revenue, together with all underlying information and advice, is protected to the greatest possible extent.
(1) The Irish domestic provisions implementing the EU Rules are expected to be detailed in Finance Act 2016 later this year.
(2) The countries with which Revenue may exchange information under the OECD Framework include 20 EU Member States, Australia, Brazil, Canada, India, Japan, Russia, South Korea, Switzerland and the US.
This article was written by Joe Duffy, Tax partner and Tomás Bailey, Tax solicitor (pictured above).
This article first appeared in TP Week on 20 July 2016.