General Tax & Legal Update

1. General Tax & Legal Update Conor Kennedy Law Library

2. Dealings with Revenue • Kinsella v The Revenue Commissioners • Legitimate Expectations • Glencar Exploration • Representation • Identifiable person actually affected • Expected to abide • Keogh v Criminal Assets Bureau

3. Public Accounts Committee • Comptroller & Auditor General Report • Extending Tax Information Exchanges • Mutual Assistance • Information exchanged • Automatic • Spontaneous • Capital gains risks • Correlation with stamp duty information • Substitution effect • Stamp duty clawback • Miscellaneous

4. Revenue Audit Findings • Large Cases Division • Residency of Companies • Film investments • Property based investments • Property owned companies • Liquidations • S.806 & EU Treaty

5. General Audit Issues • Pubs • Irish Independent article • Compliance issues in 50% of Dublin pubs • New methodology • Unfounded Allegations • Licence agreements • Finance Act 2007 • S.4(5) VATA 1972 • S.10(3) VATA 1972

6. Licence Agreements Example • Build cost €275 per sq ft • Apartment 1,000 sq ft • Cost €275,000 • Sale Price €475,000 • Land Price €175,000 • VAT liability €20,815 per apartment • Unforeseen cost to the landowner

7. Constituents of a Business • Definition ? • Trade or Business • American Leaf • Korean • Noddy Subsidiary Rights • Relevance • S.600 TCA 1997 • S.97 CATA 2003 • Reconstructions • Trade • Badges • 12.5% CT Rate • Substitution Effect

8. Finance Act 2007 • CGT – Sale of business assets/ shares in family trading companies • BES Improvements • VAT – Waiver of exemption • Offshore funds • Revenue Powers

9. Appeal Commissioners • Types of Case • C2 Issues • Record keeping • Entitlement to allowances • Large Case • Tara Mines • Ultra Vires

10. Appeal Commissioners • Law Reform Commission • 2004 Report • Increase resources of Appeal Commissioners • Increase jurisdiction • Convention on Human Rights • Consider application of penalties & other breaches • Publish decisions

11. Internal Review • What is it? • Jurisdiction • “Revenue’s handling of his or her tax or customs affairs or decisions made by a Revenue official …” • Publication • Discrimination • Proportionality • Appeal Commissioners • Human Rights issues

12. Professional Negligence • Duty of care • Breach of duty • Plaintiff suffered loss • Damage caused by that breach

13. Professional Negligence • Letters of engagement • Hurlingham Estates v Wilde & Partners • Letters of engagement • Competency of the practitioner • Sample Letter 1 – Tax Advisor • Sample Letter 2 – Accountant • Sample Letter 3 – Solicitor • Information omitted

14. Agent Mistake • Rowland v HM Revenue & Customs • Reasonable Excuse • Relied on agent • Vicarious liability • Employer main beneficiary • Better position • Implement safer practices • Absorb losses • Offers better protection to claimant

15. Revenue Penalties • The ‘Code of Practice for Revenue Auditors’ • 9.1 provides that: A tax return prepared and delivered on behalf of a taxpayer by some other person acting on his or her behalf is treated in all respects as if it had been made by the taxpayer. The taxpayer’s statutory responsibility to complete and file a correct return cannot be devolved to his or her agent. • 9.5 provides … the taxpayer cannot devolve the responsibility of making the correct return to an agent. If all relevant matters have not been brought to the attention of the agent, the taxpayer has not taken due care.

16. Practical Realities • Workload of Agents • Complexities of statutory obligations • Industry standard • Cars serviced • Diagnosing ailments • Non delegable • Disproportionate • ECJ jurisprudence