Section 75A Relief for clearing houses
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Amendments
Section 75A inserted by Finance Act 2007 section 109(1)(d) from 1 October 2007 (appointed by the Minister of Finance under Finance Act 2007 (Commencement of Section 109) Order 2007 (SI 649/2007).
(1) In this section-
"clearing house" means a body or association which provides services related to the clearing and settlement of transactions and payments and the management of risks associated with the resulting contracts and which is regulated or supervised in the provision of those services (in this section referred to as "clearing services") by a regulatory body, or an agency of government, of a Member State of the European Communities;
"clearing participant" means a member of a recognised clearing house who is permitted by the clearing house to provide clearing services in connection with a transfer of securities;
"client" means a person who gives instructions for securities to be sold;
"nominee" means a person whose business is or includes holding securities as a nominee for a recognised clearing house acting in its capacity as a provider of clearing services or, as the case may be, a nominee for a clearing participant or a non-clearing participant;
"non-clearing participant" means a member of an exchange or market when not acting as a clearing participant;
"recognised clearing house" means-
(a) Eurex Clearing AG,
(b) LCH.Clearnet Limited,
(c) [SIS x-clear Aktiengesellschaft]1, or
(d) any other clearing house designated as a recognised clearing house for the purposes of this section by regulations made by the Commissioners.
Amendments
1 Substituted by Finance Act 2008 section 141 and Schedule 8 para 2 as respects instruments executed on or after 1 October 2007.
What definitions apply in relation to clearing houses?
(1) A clearing house is a body which enables the clearing and settlement of transactions and risk management associated with resulting transactions. In providing its services, it is regulated by a regulatory body or a government agency of an EU State...
(2) Stamp duty shall not be chargeable on an instrument of transfer whereby any securities are on the sale of such securities transferred in the circumstances referred to in subsection (3) where the conditions referred to in subsection (4) are satisfied.
(3) The circumstances referred to in this subsection are that the transfer of securities is-
(a) from a clearing participant or a nominee of a clearing participant, to another clearing participant or a nominee of that other clearing participant,
(b) from a client or a non-clearing participant or a nominee of a non-clearing participant, to a clearing participant or a nominee of a clearing participant,
(c) from a non-clearing participant or a nominee of a non-clearing participant or a clearing participant or a nominee of a clearing participant, to a recognised clearing house or a nominee of a recognised clearing house,
(d) from a person other than a clearing participant, to a recognised clearing house or a nominee of a recognised clearing house, as a result of a failure by a clearing participant to fulfil that clearing participant's obligations in respect of the transfer of securities to the recognised clearing house or a nominee of the recognised clearing house,
(e) from a recognised clearing house or a nominee of a recognised clearing house, to a clearing participant or a nominee of a clearing participant or a non-clearing participant or a nominee of a non-clearing participant, or
(f) from a clearing participant, or a nominee of a clearing participant to a non-clearing participant or a nominee of a non-clearing participant.
(4) The conditions referred to in this subsection are that the person to whom the securities are transferred under a transfer of securities referred to in paragraphs (a) to (f) of subsection (3) (in this section referred to as the "relevant transfer") is required on receipt of those securities to transfer securities under a matching transfer to another person, or in the case of a relevant transfer falling within paragraph (d), would have been so required if the failure referred to in that paragraph had not occurred.
What conditions must be met in order for a clearing house transfer to be exempt from stamp duty?
(4) The conditions are that the transferee in respect of a relevant transfer mentioned in (3) must transfer those securities under a matching transfer (see (5)) to another person (or in the case mentioned in (3)(d) would have done so had the failure ...
(5) For the purposes of subsection (4), a "matching transfer" means a transfer of securities under which-
(a) the securities transferred are of the same kind as the securities transferred under the relevant transfer, and
(b) the number of and consideration paid for, the securities transferred are identical to the number of and consideration paid for, the securities transferred under the relevant transfer.
(6)(a) The Commissioners may, from time to time, make regulations to designate a clearing house as a recognised clearing house for the purposes of this section.
(b) Every regulation made under this section shall be laid before Dáil Eíreann as soon as may be after it is made and, if a resolution annulling the regulation is passed by Dáil Eíreann within the next 21 days on which Dáil Eíreann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
