Section 769I Corporation tax referable to a specified trade

Source

Finance Act 2015 section 32(1)(a).

(1) For the purposes of this section qualifying profits, in relation to a qualifying asset, shall be the amount determined by the formula—

                                     QE + UE   x QA

                                         OE

where—

QE is the qualifying expenditure on the qualifying asset,

UE is the uplift expenditure,

OE is the overall expenditure on the qualifying asset, and

QA is the profit of the specified trade relevant to the qualifying asset before taking account of any allowance available under subsection (5).

(2) (a) Where qualifying profits in respect of a qualifying asset arise in the course of a specified trade, then a relevant company may make a claim in respect of that qualifying asset under this section, in the return required to be filed pursuant to section 959I.

(b) Subject to section 769P, any claim under this section shall be made once in respect of each qualifying asset and shall be made within 24 months from the end of the accounting period to which the claim relates.

(c) Where under this section a claim is made to include the overall income from the qualifying asset in the income of a specified trade in any accounting period, then all amounts of income and expenditure related to that qualifying asset shall be taken to continue to relate to that specified trade until such time as the qualifying asset is disposed of or ceases to be used.

(3) Where during an accounting period a relevant company, which has made a claim under this section, carries on a specified trade, those activities shall be treated for the purposes of this Chapter, Chapter 2 of Part 8, Chapter 3 of Part 12 and Part 41A, as a separate trade distinct from any other trade carried on by the company.

(4) (a) Subject to paragraph (b), in order to determine the profits or gains of the specified trade to be charged to tax under Case I of Schedule D—

(i) the income of the trade shall be the overall income from qualifying assets in respect of which a claim has been made under this section, and

(ii) any necessary apportionment shall be made so that expenses laid out or expended in earning the income referred to in subparagraph (i) shall be attributed to the specified trade on a just and reasonable basis and the amount of the expenses shall be an amount which would be attributed to a distinct and separate company, engaged in the same activities, if it were independent of, and dealing at arm’s length with the relevant company.

(b) Where a relevant company has carried on a specified trade for one or more previous accounting periods, then the method or methods of apportionment used for the purposes of this section shall be applied consistently between accounting periods, unless there has been a significant change in the conduct of the relevant company’s trade or business.

(5) In computing for the purposes of corporation tax the profits of a relevant company’s specified trade for an accounting period, insofar as the profits are referable to qualifying profits from a qualifying asset in respect of which a claim was made under this section, there shall be made an allowance equal to 50 per cent of the qualifying profits and that allowance shall be treated as a trading expense of the trade in that period.

(6) (a) The Revenue Commissioners may, in relation to a claim by a relevant company that a profit is a qualifying profit—

(i) consult with any person (in this subsection referred to as an ‘expert’) who in their opinion may be of assistance in ascertaining the extent to which:

(I) expenditure is qualifying expenditure in the qualifying asset;

(II) expenditure is overall expenditure on the qualifying asset;

(III) income is overall income from the qualifying asset;

(IV) intellectual property is, or forms part of, a qualifying asset;

(V) any apportionment is done on a just and reasonable basis;

(VI) arm’s length values have been correctly determined; or

(VII) a patent, referred to in paragraph (b) of the definition of ‘qualifying patent’ in section 769G(1), meet the patentability criteria set out in that paragraph,

and

(ii) notwithstanding any obligation as to secrecy or other restriction on the disclosure of information imposed by, or under, the Tax Acts or any other statute or otherwise, but subject to paragraph (b), disclose to the expert any detail in the company’s claim under this section which they consider necessary for the purposes of such consultation.

(b)(i) Before disclosing information to any expert under paragraph (a) the officer of the Revenue Commissioners shall give the company a notice in writing of—

(I) the officer’s intention to disclose information to an expert,

(II) the information that the officer intends to disclose,

(III) the identity of the expert whom the officer intends to consult,

and shall allow the company a period of 30 days after the date of the notice to show to the officer’s satisfaction that disclosure of such information to that expert could prejudice the company’s trade or business.

(ii) Where, on the expiry of the period referred to in subparagraph (i), it is not shown to the satisfaction of the officer that disclosure could prejudice the company’s trade or business, the officer may disclose the information on the expiry of a further period of 30 days after giving notice in writing of the officer’s decision to disclose the information.

(iii) A company aggrieved by an officer’s decision made under subparagraph (ii) in respect of it may appeal the decision to the Appeal Commissioners, in accordance with section 949I, within the period of 30 days after the date of that decision.