Investing in Ireland, Corporate Governance and Tax
The international tax landscape is continuing to face extensive changes on a global level as further measures aimed at enhancing fair and transparent taxation are introduced.
The source of these changes is a combination of measures agreed at an OECD, EU and domestic level.
Notwithstanding significant developments in the global tax landscape, continuing to attract FDI remains a fundamental cornerstone of Irish tax policy and legislation. Ireland is taking steps to ensure that Ireland’s corporation tax regime will remain competitive, fair and sustainable. A review of Ireland’s R&D tax credit is expected in the coming year and the Irish government has established a Commission on Taxation and Welfare to conduct a comprehensive review of the Irish tax and welfare systems. This review extends to simplifying the Irish tax system and considering potential amendments to the personal tax regime to continue to attract mobile workers.
It is clear that 2022 and onwards into 2023 will be a transformative period in the international tax landscape as key new measures, such as the global minimum effective tax rate of 15% are implemented into Irish domestic legislation. We expect to see many of these changes introduced in this year’s Finance Bill to be published in October 2022.
On the Corporate Governance side, Covid-19 dominated the boardroom agenda for the past two years but, for companies and their boards, the focus now begins to shift towards the busy legislative slate ahead.
Domestically, themes such as investment screening, the establishment of the Corporate Enforcement Authority, an overhaul of the competition enforcement regime and the modernisation of laws governing certain corporate vehicles are expected to feature prominently.
Some emergency company law measures designed to facilitate the continuation of business during the pandemic will make their way permanently onto the statute books. EU commitments under the European Green Deal will begin to be felt in the boardroom. Irish companies will be keeping a close eye on developments in the ESG area. The Proposal for a Corporate Sustainability Reporting Directive would oblige companies in scope to report against common EU sustainability reporting standards. This will see a large number of companies being brought within the sustainability reporting regime for the first time. The related Proposal for a Corporate Sustainability Due Diligence Directive seeks to introduce a sustainability due diligence duty for large companies to address adverse human rights and environmental impacts. Early planning on the part of companies and their directors is key.
Key Themes in Taxation and Company Law
Update on the OECD’s two pillar approach
The landmark agreement reached by the international community in October 2021 will result in a major reform of the international tax system to address tax challenges arising from the digitalisation of the economy. This will be achieved with the adoption of the OECD’s Pillar One and Pillar Two proposals.
- Pillar One will introduce a new formulaic mechanism for allocating profits among multinational groups. It is expected that taxing rights on more than EUR 100 billion of profits will be reallocated to market jurisdictions each year under this mechanism.
- Pillar Two introduces a global minimum corporate tax rate set at 15%. The new minimum effective tax rate will apply to companies with revenue above EUR 750 million and it is expected to generate around EUR 130 billion in additional global tax revenues annually.
The OECD is moving ahead with an ambitious timeframe for this project, with effective implementation of the proposals targeted for 2023. Model rules in respect of both Pillars have been published by the OECD and public consultations are continuing. Therefore, we expect to see these rules being shaped and refined throughout 2022, with the final proposals implemented into Irish domestic legislation by 2023.
Importantly, Ireland’s headline 12.5% corporation tax rate will remain in force for businesses in Ireland with revenues below EUR 750 million. This will mean that there will be no increase in the corporate tax rate for over one hundred and sixty thousand businesses operating in Ireland.
In parallel with the OECD’s work plan, many new EU measures will also be implemented in 2022 and subsequent years aligning with the European Commission Tax Action Plan published in 2020. A common EU approach is emerging in certain areas such as transparency, information sharing and common rules on targeting tax advantages arising from mismatches between different regimes. Some key EU tax proposals include:
- ATAD III: In December 2021, the European Commission presented ATAD III, or the draft Directive known as the “unshell” proposal, to ensure that entities in the EU that have no or minimal economic activity are denied the benefit of certain tax advantages. If adopted, this Directive is proposed to come into effect on 1 January 2024.
- Public country-by-country reporting: Tax authorities within the EU have been exchanging a wide range of tax data since 2016. Under a new EU public country-by-country reporting Directive to be transposed by June 2023, much of this information will now be shared publicly by in-scope entities for financial years from June 2024.
- DAC 7: The latest iteration of the EU information sharing directives is DAC 7, which will extend the scope of the existing information exchange in 2023 to digital platforms that will be required to collect and report information on income realised by sellers on such digital platforms.
There are also a number of other EU tax proposals in the pipeline, including BEFIT, a new framework for income taxation for businesses in Europe, which aims to replace the previous proposals for a CCCTB by building on the approval of formulary apportionment in the global tax agreement. In addition, rules to incentivise investment in companies by way of equity rather than debt are also being proposed under the EU’s “DEBRA” initiative.
Ireland remains a willing participant in the ongoing process of global tax reform and fully supports most of these proposals. The move to a global minimum effective tax rate is a step towards greater tax certainty, which is widely welcomed by multinational taxpayers in Ireland. Importantly the 12.5% headline corporation tax rate will remain in force for companies below the Pillar Two revenue threshold of EUR 750 million revenue threshold. Ireland also intends to ensure that the use of R&D tax credits can continue to support innovation and growth in compliance with the OECD framework.
Aside from Ireland’s competitive tax regime, there are a myriad of reasons why Ireland is an attractive FDI location, including our highly skilled workforce, membership of the EU, vast treaty network and multitude of non-tax government incentives. A recent OECD report found that Ireland was the second most open economy to trade in in the OECD. This is also reflected in statements by the Irish Development Authority, (the "IDA") which confirmed that in 2020, Ireland actually increased its market share of Foreign Direct Investment into Europe in the face of global declines in FDI flows.
Overall, it is clear that the FDI pipeline looks to remain strong throughout 2022 and onwards.
Corporate Governance Developments
Foreign direct investment (“FDI”) remains a pillar of the Irish economy. An FDI screening regime is now firmly on the horizon, having been categorised as priority legislation in successive legislative agendas in recent times.
The recent introduction of an equivalent UK investment screening regime generated much attention. The fact that pre-legislative scrutiny has been waived may ease the passage of the (as yet unpublished) Investment Screening Bill but we can still expect policy debate in this area over the coming months.
The COVID-19 pandemic only served to intensify calls for investment screening in the period since the EU Investment Screening Regulation 2019/452 became operational in October 2020. The precise parameters of the proposed Irish regime and its interaction with existing merger clearance procedures will only become apparent upon publication.
The Companies (Corporate Enforcement Authority) Act 2021 became law on 22 December 2021 but awaits commencement. Its key aim is to establish the Corporate Enforcement Authority as a statutory agency with the autonomy and resources to respond effectively to white collar crime. The act also ‘fixes’ certain anomalies found in the Companies Act 2014.
While welcome, these amendments fall short of those recommended by the Company Law Review Group and other expert bodies. Further legislation will be required to address these anomalies but whether this will be within the Companies (Miscellaneous Provisions) Bill or elsewhere remains to be determined.
The proposed Corporate Sustainability Reporting Directive (“CSRD”) would oblige companies to report against common EU sustainability reporting standards. Some 11,000 EU companies are already covered by the CSRD’s predecessor, the Non-financial Reporting Directive 2014 ("NFRD") which was transposed into Irish law in 2017.
NFRD reporting requirements apply to large “public interest entities” with more than 500 employees. The CSRD will apply to all large EU companies (except listed micro-companies) bringing approximately 49,000 companies in scope of a more ambitious sustainability reporting regime.
Companies are likely to start reporting to the new standards in 2024, based on FY2023 information, with SMEs being given additional time. Now is the time for boards to plan for these significant changes coming down the tracks.
The Companies (Corporate Enforcement Authority) Bill 2021 – now published
The government has published the Companies (Corporate Enforcement Authority) Bill 2021 (“the Bill”). This provides for the establishment of the Office of the Director of Corporate Enforcement as a statutory, stand-alone agency called the Corporate Enforcement Authority (“CEA”) with increased autonomy and resources to respond to white collar crime in Ireland. The Bill has been drafted on the basis of a General Scheme approved by Government in December 2018 and links to our previous briefings on the General Scheme can be found below.
The proposed establishment of the CEA demonstrates continuing governmental momentum to implement the recommendations of the Hamilton Report Group (a link to our briefing on this report is also contained below). Under the Bill the existing functions of the Office of the Director of Corporate Enforcement (“ODCE”) will transfer to the CEA. Similar to the role of the ODCE, the Bill contemplates the CEA tackling allegations of breaches of company law and investigating alleged criminal activity in the areas of fraudulent trading prior to insolvency, among other matters. The CEA will have a mandate to investigate a greater volume of cases, and to target more complex types of offences, and to secure more convictions for corruption and white collar crime. The Bill provides for it to be given wide investigative powers to help it achieve its aims.
In a recent press release here, Ian Drennan, Director of Corporate Enforcement, commented that the approval of the Bill marks “a watershed moment in Ireland’s strategic approach towards addressing economic and white collar crime.” The government has publicly committed to invest in the CEA, including by assigning 14 additional staff to it and increasing its permanent complement of members of An Garda Siochana from 7 to 16. Assuming this can be achieved, the CEA’s headcount will be nearly 50% above existing levels in the ODCE. This is to be welcomed and should go some way to address the recommendations in the Hamiliton Report that “the new Corporate Enforcement Authority should be suitably resourced to enable it to meet its mandate and to realise its full potential.” The CEA must prepare a strategy statement as soon as possible after its establishment, detailing its key objectives and output for the following three years (and renew it every three years subsequently). This should assist in focussing minds and resources on key themes and priorities, and deliver a level of transparency and accountability.
It is also worth noting that the Bill endeavours to address, by way of technical amendments, some of the anomalies found in the Companies Act 2014. Some of these amendments, which closely reflect those contained in the General Scheme, give effect to certain previous recommendations of the Company Law Review Group in this regard. Among the changes proposed are amendments and clarifications relating to the share capital of companies and to their corporate governance.
Some of the share capital changes proposed in Part 3 of the Bill include:
- restoration of the use of the share premium account for various purposes;
- clarification relating to three-party share for undertaking and share for share transactions;
- confirmation that unlimited companies do not require reserves to acquire their own shares; and
- clarification on the post-merger treatment of merging/dividing companies’ shares acquired by a successor company (for example, in the case of a downstream merger).
Provisions in relation to corporate governance and other miscellaneous amendments can be found in Parts 4 and 5 respectively. These include an additional ground for applications to court for director restriction where that director has not met certain requirements in the course of a company becoming insolvent.
The ‘fixes’ to various technical glitches under the Companies Act 2014 will be welcomed by advisors and companies alike.
The Bill, is expected to move quickly through the Houses of the Oireachtas and it is hoped that it will be enacted during the Autumn session.
This article is provided for general information purposes only and does not purport to cover every aspect of the themes and subject matter discussed, nor is it intended to provide, and does not constitute or comprise, legal or any other advice on any particular matter.