Section 268 Meaning of “industrial building or structure”

Source

Taxes Consolidation Act 1997 section 268.

(1) In this Part “industrial building or structure” means a building or structure in use-

(a) for the purposes of a trade carried on in-

(i) a mill, factory or other similar premises, or

(ii) a laboratory the sole or main function of which is the analysis of minerals (including oil and natural gas) in connection with the exploration for or the extraction of such minerals,

(b) for the purposes of a dock undertaking,

(c) for the purposes of growing fruit, vegetables or other produce in the course of a trade of market gardening within the meaning of section 654,

(d) for the purposes of the trade of hotel-keeping,

(e) for the purposes of the intensive production of cattle sheep pigs poultry or eggs in the course of a trade other than the trade of farming within the meaning of section 654,

(f) for the purposes of a trade which consists of the operation or management of an airport and which is an airport runway or an airport apron used solely or mainly by aircraft carrying passengers or cargo for hire or reward,

(g) for the purposes of a trade which consists of the operation or management of a nursing home (in this section referred to as a “registered nursing home”) within the meaning of section 2 of the Health (Nursing Homes) Act, 1990, being a nursing home which is registered under section 4 of that Act,

(h) for the purposes of a trade which consists of the operation or management of an airport, other than a building or structure to which paragraph (f) relates

(i) for the purposes of a trade which consists of the operation or management of a convalescent home for the provision of medical and nursing care for persons recovering from treatment in a hospital, being a hospital that provides treatment for acutely ill patients, and in respect of which convalescent home the Health Service Executive, is satisfied that the convalescent home satisfies the requirements of sections 4 and 6 of the Health (Nursing Homes) Act, 1990, and any regulations made under section 6 of that Act as if it were a nursing home within the meaning of section 2 of that Act,

(j) for the purposes of a trade which consists of the operation or management of a qualifying hospital,

(k) for the purposes of a trade which consists of the operation or management of a qualifying sports injuries clinic,

(l) for the purposes of a trade which consists of the operation or management of a qualifying mental health centre,

(m) for the purposes of a trade which consists of the operation or management of a qualifying specialist palliative care unit,

or

(n) for the purposes of a trade which consists of-

(i) the maintenance, repair or overhaul of aircraft used to carry passengers or cargo for hire or reward, or

(ii) the dismantling of aircraft of the kind referred to in subparagraph (i), for the purposes of the salvaging or recycling of parts or materials,

and in particular, in relation to capital expenditure incurred on or after the 6th day of April, 1969, includes any building or structure provided by the person carrying on such a trade or undertaking for the recreation or welfare of workers employed in that trade or undertaking and in use for that purpose.

Amendments

Finance Act 1998 section 22(a)(i).

Finance Act 1998 section 20(a)(i).

Finance Act 1999 section 48(a)(i).

Finance Act 2000 section 36.

Finance Act 2001 section 64(1)(a).

Finance Act 2002 section 33.

Finance Act 2002 section 34(1)(a).

Finance Act 2005 section 147.

Finance Act 2006 section 36(1)(a).

Finance Act 2008 section 26(1)(a).

 Finance Act 2013 section 31(1).

(1A) Where the relevant interest in relation to capital expenditure incurred on the construction of a building or structure in use for the purposes specified in subsection (1)(j) is held by-

(a) a company,

(b) the trustees of a trust,

(c) an individual who is involved in the operation or management of the qualifying hospital concerned either as an employee or director or in any other capacity, or

(d) a property developer (within the meaning of section 843A) or a person who is connected with the property developer, in the case where either of such persons incurred the capital expenditure on the construction of that building or structure, or such expenditure was incurred by any other person connected with the property developer,

then, notwithstanding that subsection, that building or structure shall not, as regards a claim for any allowance under this Part by any such person, be regarded as an industrial building or structure for the purposes of this Part, irrespective of whether that relevant interest is held by the person referred to in paragraph (a), (b), (c) or (d), as the case may be, in a sole capacity or jointly or in partnership with another person or persons.

Finance Act 2004 section 24(1)(a).

Finance Act 2008 section 29(1)(a).

(1B) Where the relevant interest in relation to capital expenditure incurred on the construction of a building or structure in use for the purposes specified in subsection (1)(k) is held by-

(a) a company,

(b) the trustees of a trust,

(c) an individual who is involved in the operation or management of the qualifying sports injuries clinic concerned either as an employee or director or in any other capacity, or

(d) a property developer (within the meaning of section 372A), in the case where either such property developer or a person connected with such property developer incurred the capital expenditure on the construction of that building or structure,

then, notwithstanding that subsection, that building or structure shall not, as regards a claim for any allowance under this Part by any such person, be regarded as an industrial building or structure for the purposes of this Part, irrespective of whether that relevant interest is held by the person referred to in paragraph (a), (b), (c) or (d), as the case may be, in a sole capacity or jointly or in partnership with another person or persons.

(1C) In this section “qualifying mental health centre” means a centre (within the meaning of section 62 of the Mental Health Act 2001) which-

(a) is an approved centre for the purposes of the Mental Health Act 2001,

(b) has the capacity to provide day-patient and out-patient services and accommodation on an overnight basis of not less than 20 in-patient beds,

(c) provides to the Health Service Executive relevant data, for onward transmission to the Minister for Health and Children and the Minister for Finance, in relation to-

(i) the amount of the capital expenditure actually incurred on the construction or refurbishment of the centre,

(ii) the number and nature of the investors that are investing in the centre,

(iii) the amount to be invested by each investor, and

(iv) the nature of the structures which are being put in place to facilitate the investment in the centre,

together with such other information as may be specified by the Minister for Finance, in consultation with the Minister for Health and Children, as being of assistance in evaluating the costs, including but not limited to exchequer costs, and the benefits arising from the operation of tax relief under this Part for qualifying mental health centres,

(d) undertakes to the Health Service Executive-

(i) to make available annually, for the treatment of persons who have been awaiting day-patient, in-patient or out-patient services as public patients, not less than 20 per cent of its capacity, subject to service requirements to be specified by the Health Service Executive in advance and to the proviso that nothing in this subparagraph shall require the Health Service Executive to take up all or any part of the capacity made available to the Health Service Executive by the centre, and

(ii) in relation to the fees to be charged in respect of the treatment afforded to any such person that such fees shall not be more than 90 per cent of the fees which would be charged in respect of similar treatment afforded to a person who has private medical insurance,

and

(e) in respect of which the Health Service Executive, in consultation with the Minister for Health and Children and with the consent of the Minister for Finance, gives an annual certificate in writing during the period of-

(i) 15 years beginning with the time when the centre was first used, or

(ii) where capital expenditure on the refurbishment of the centre is incurred, 15 years beginning with the time when the centre was first used subsequent to the incurring of that expenditure,

stating that it is satisfied that the centre complies with the conditions mentioned in paragraphs (a), (b), (c) and (d),

and-

(I) subject to paragraph (II), includes any part of the centre which consists of rooms used exclusively for the assessment or treatment of patients, but

(II) does not include any part of the centre which consists of consultants’ rooms or offices.

Amendments

Finance Act 2006 section 36(1)(a).

(1D) Where the relevant interest in relation to capital expenditure incurred on the construction of a building or structure in use for the purposes specified in subsection (1)(l) is held by-

(a) a company,

(b) the trustees of a trust,

(c) an individual who is involved in the operation or management of the centre concerned either as an employee or director or in any other capacity, or

(d) a property developer (within the meaning of section 843A) or a person who is connected with the property developer, in the case where either of such persons incurred the capital expenditure on the construction of that building or structure, or such expenditure was incurred by any other person connected with the property developer,

then, notwithstanding that subsection, that building or structure shall not, as regards a claim for any allowance under this Part by any such person, be regarded as an industrial building or structure for the purposes of this Part, irrespective of whether that relevant interest is held by the person referred to in paragraph (a), (b), (c) or (d), as the case may be, in a sole capacity or jointly or in partnership with another person or persons.

(1E) Where the relevant interest in relation to capital expenditure incurred on the construction of a building or structure in use for the purposes specified in subsection (1)(m) is held by—

(a) a company,

(b) the trustees of a trust,

(c) an individual who is involved in the operation or management of the unit concerned either as an employee or director or in any other capacity, or

(d) a property developer (within the meaning of section 843A) or a person who is connected with the property developer, in the case where either of such persons incurred the capital expenditure on the construction of that building or structure, or such expenditure was incurred by any other person connected with the property developer,

then, notwithstanding that subsection, that building or structure shall not, as regards a claim for any allowance under this Part by any such person, be regarded as an industrial building or structure for the purposes of this Part, irrespective of whether that relevant interest is held by the person referred to in paragraph (a), (b), (c) or (d), as the case may be, in a sole capacity or jointly or in partnership with another person or persons.

Amendments

Finance Act 2008 section 26(1)(a).

(1F) Where the relevant interest in relation to capital expenditure incurred on the construction of a building or structure in use for the purposes specified in subsection (1)(n) is held by a property developer (within the meaning of section 843A) or a person who is connected with the property developer, in the case where either of such persons incurred the capital expenditure on the construction of that building or structure, or such expenditure was incurred by any other person connected with the property developer, then, notwithstanding that subsection, that capital expenditure shall not, as regards a claim for any allowance under this Part by any such person, be regarded as specified capital expenditure for the purposes of this Part, irrespective of whether that relevant interest is held by the person in a sole capacity or jointly or in partnership with another person or persons.

(2) In this section, “dock” includes any harbour, wharf, pier or jetty or other works in or at which vessels can ship or unship merchandise or passengers, not being a pier or jetty primarily used for recreation, and “dock undertaking” shall be construed accordingly.

(2A) In this section-

“qualifying hospital” means a hospital which-

(a) is a private hospital (within the meaning of the Health Insurance Act 1994 (Minimum Benefits) Regulations, 1996(S.I. No. 83 of 1996)),

(c) has the capacity to provide and normally provides medical and surgical services to persons every day of the year,

(d) has the capacity to provide-

(i) out-patient services and accommodation on an overnight basis of not less than 70 in-patient beds, or

(ii) day-case and out-patient medical and surgical services and accommodation for such services of not less than 40 beds,

(e) contains an operating theatre or theatres and related on-site diagnostic and therapeutic facilities,

(f) contains facilities to provide not less than 5 of the following services:

(i) accident and emergency,

(ii) cardiology and vascular,

(iii) eye ear nose and throat,

(iv) gastroenterology,

(v) geriatrics,

(vi) haematology,

(vii) maternity,

(vii) medical,

(ix) neurology,

(x) oncology,

(xi) orthopaedic,

(xii) respiratory,

(xiii) rheumatology,

(xiv) paediatric, and

(xv) mental health services (within the meaning of the Mental Health Act 2001),

(fa) in the case of a building or structure which-

(i) is first used on or after 1 February 2007, or

(ii) where capital expenditure on the refurbishment of the building or structure is incurred, is, subsequent to the incurring of that expenditure, first used on or after 1 February 2007,

provides to the Health Service Executive relevant data, for onward transmission to the Minister for Health and Children and the Minister for Finance, in relation to-

(I) the amount of the capital expenditure actually incurred on the construction or refurbishment of the building or structure,

(II) the number and nature of the investors that are investing in the building or structure,

(III) the amount to be invested by each investor, and

(IV) the nature of the structures which are being put in place to facilitate the investment in the building or structure,

together with such other information as may be specified by the Minister for Finance, in consultation with the Minister for Health and Children, as being of assistance in evaluating the costs, including but not limited to exchequer costs and the benefits arising from the operation of tax relief under this Part for qualifying hospitals,

(g) undertakes to the Health Service Executive-

(i) to make available annually, for the treatment of persons who have been awaiting in-patient or out-patient hospital services as public patients, not less than 20 per cent of its capacity, subject to service requirements to be specified by the health board in advance and to the proviso that nothing in this subparagraph shall require the Health Service Executive to take up all or any part of the capacity made available to the Health Service Executive by the hospital, and

(ii) in relation to the fees to be charged in respect of the treatment afforded to any such person, that such fees shall not be more than 90 per cent of the fees which would be charged in respect of similar treatment afforded to a person who has private medical insurance,

and

(h) in respect of which the Health Service Executive, in consultation with the Minister for Health and Children and with the consent of the Minister for Finance, gives an annual certificate in writing during the period of-

(i) 10 years beginning with the time referred to in section 272(4)(ga)(i), or

(ii) as respects a building or structure which is first used on or after 1 February 2007, 15 years beginning with the time when the building or structure was first used, or

(iii) where capital expenditure on the refurbishment of a building or structure is incurred and, subsequent to the incurring of that expenditure, the building or structure is first used on or after 1 February 2007, 15 years beginning with the time when the building or structure was first used subsequent to the incurring of that expenditure,

stating that it is satisfied that the hospital complies with the conditions mentioned in paragraphs (a), (c), (d), (e), (f), (fa) and (g),

and-

(I) subject to paragraph (II), includes any part of the hospital which consists of rooms used exclusively for the assessment or treatment of patients, but

(II) does not include any part of the hospital which consists of consultants’ rooms or offices.

Finance Act 2003 section 24.

Finance Act 2005 section 147.

Finance Act 2006 section 35(1)(a).

(2B) In this section “qualifying sports injuries clinic” means a medical clinic-

(a) which does not (other than by virtue of paragraph (e)) provide health care services to a person pursuant to his or her entitlements under Chapter II of Part IV of the Health Act 1970,

(b) in which the sole or main business carried on is the provision by or under the control of medical or surgical specialists, of health care consisting of the diagnosis, alleviation and treatment of physical injuries sustained by persons in participating or in training for participation in athletic games or sports,

(c) which has the capacity to provide day-patient, in-patient and out-patient medical and surgical services and in-patient accommodation of not less than 20 beds,

(d) which contains an operating theatre or theatres and related on-site diagnostic and therapeutic facilities,

(e) which undertakes to the Health Service Executive-

(i) to make available annually, for the treatment of persons who have been awaiting day-patient in-patient or out-patient hospital services as public patients not less than 20 per cent of its capacity, subject to service requirements to be specified by the Health Service Executive in advance and to the condition that nothing in this subparagraph shall require the Health Service Executive to take up all or any part of the capacity made available to the health board by the medical clinic, and

(ii) in relation to the fees to be charged in respect of the treatment afforded to any such person that such fees shall not be more than 90 per cent of the fees which would be charged in respect of similar treatment afforded to a person who has private medical insurance,

and

(f) in respect of which the Health Service Executive, in consultation with the Minister for Health and Children and with the consent of the Minister for Finance gives during the period of 10 years beginning with the time referred to in section 272(4)(h), an annual certificate in writing stating that it is satisfied that the medical clinic complies with the conditions mentioned in paragraphs (a) to (e),

and-

(I) subject to paragraph (II), includes any part of the clinic which consists of rooms used exclusively for the assessment or treatment of patients, but

(II) does not include any part of the clinic which consists of consultants’ rooms or offices.

(2BA) In this section—

“palliative care” means the active total care of patients who suffer from illnesses or diseases which are active, progressive and advanced in nature and which are no longer curable by means of the administration of existing or available medical treatments;

“qualifying specialist palliative care unit” means, subject to subsection (2BB), a building or structure—

(a) which is a hospital, hospice (within the meaning of section 47 (as amended by section 16 of the Public Health (Tobacco) (Amendment) Act 2004) of the Public Health (Tobacco) Act 2002) or similar facility which has palliative care as its main activity,

(b) which, before entering into a legal commitment for its design, commissioning, construction or refurbishment, is approved by the Health Service Executive, with the consent of the Minister for Health and Children, as being in accordance with national development plans or national needs assessments for palliative care facilities,

(c) which has the capacity to provide—

(i) day-patient and out-patient palliative care services, and

(ii) palliative care accommodation on an overnight basis of not less than 8 in-patient beds,

(d) in respect of which relevant data is provided to the Health Service Executive, for onward transmission to the Minister for Health and Children and the Minister for Finance, in relation to—

(i) the amount of the capital expenditure actually incurred on the construction or refurbishment of the unit,

(ii) the amount, if any, of such expenditure which has been or is to be met directly or indirectly by the State or by any other person by way of grant or other financial assistance,

(iii) the number and nature of the investors that are investing in the unit,

(iv) the amount to be invested by each investor, and

(v) the nature of the structures which are being put in place to facilitate the investment in the unit,

together with such other information as may be specified by the Minister for Finance, in consultation with the Minister for Health and Children, as being of assistance in evaluating the costs, including but not limited to exchequer costs, and the benefits arising from the operation of tax relief under this Part for qualifying specialist palliative care units,

(e) in relation to which an undertaking is given to the Health Service Executive—

(i) to make available annually, for the palliative care of persons who have been awaiting day-patient, in-patient or out-patient palliative care services as public patients, not less than 20 per cent of its capacity, subject to service requirements to be specified by the Health Service Executive in advance and to the proviso that nothing in this subparagraph shall require the Health Service Executive to take up all or any part of the capacity made available to the Health Service Executive by the unit, and

(ii) in relation to the fees to be charged in respect of the palliative care afforded to any such person, that such fees shall not be more than 90 per cent of the fees which would be charged in respect of similar palliative care afforded to a person who has private medical insurance,

and

(f) in respect of which the Health Service Executive, in consultation with the Minister for Health and Children and with the consent of the Minister for Finance, gives an annual certificate in writing during the period of—

(i) 15 years beginning with the time when the unit was first used, or

(ii) where capital expenditure on the refurbishment of the unit is incurred, 15 years beginning with the time when the unit was first used subsequent to the incurring of that expenditure,

stating that it is satisfied that the unit complies with the conditions mentioned in paragraphs (a) to (e).

Amendments

Finance Act 2008 section 26(1)(a).

(2BB)(a) Subject to paragraphs (b) and (c), a qualifying specialist palliative care unit includes any part of the unit which consists of rooms used exclusively for the assessment, treatment or care of patients.

(b) A qualifying specialist palliative care unit does not include any part of the unit which consists of consultants’ rooms or offices.

(c) A qualifying specialist palliative care unit does not include any part of the unit in which a majority of the persons being maintained are being treated for acute illnesses.

Amendments

Finance Act 2008 section 26(1)(a).

(2C) For the purposes of this Part, a building or structure (other than a building or structure which is in use for the purposes of the trade of hotel-keeping) which is in use as-

(a) a guest house and is registered in the register of guest houses kept under the Tourist Traffic Acts 1939 to 2003, or

(b) a holiday hostel and is registered in the register of holiday hostels kept under the Tourist Traffic Acts 1939 to 2003,

shall, as respects capital expenditure incurred on or after 3 February 2005 on its construction (within the meaning of section 270), be deemed to be a building or structure in use for the purposes of the trade of hotel-keeping.

Amendments

Finance Act 2005 section 34(a)(i).

(2D) For the purposes of this Part, a building or structure which is comprised in, and is in use as part of, premises which are registered in the register of caravan sites and camping sites kept under the Tourist Traffic Acts 1939 to 2003 shall, as respects capital expenditure incurred on or after 1 January 2008 on its construction (within the meaning of section 270), be deemed to be a building or structure in use for the purposes of the trade of hotel-keeping.

(3) For the purpose of this Part, a building or structure in use as a holiday camp registered in the register of holiday camps kept under the Tourist Traffic Acts 1939 to 2003 or, in relation to capital expenditure incurred on or after the 1st day of July, 1968, a building or structure in use as a holiday cottage and comprised in premises registered in any register of holiday cottages established by the National Tourism Development Authority under any Act of the Oireachtas passed on or after the 29th day of July, 1969, shall, subject to subsection (13), be deemed to be a building or structure in use for the purposes of the trade of hotel-keeping.

Amendments

Finance Act 2003 section 25(1)(a).

Finance Act 2005 section 34(a)(ii).

(3A) Subject to subsections (3B) to (3E), in this section“qualifying residential unit” means a house which-

(a) is constructed on the site of, or on a site which is immediately adjacent to the site of, a registered nursing home,

(b) is-

(i) a single storey house, or

(ii) a house that is comprised in a building of one or more storeys in relation to which building a fire safety certificate under Part III of the Building Control Regulations 1997 (S.I. No. 496 of 1997) (as amended from time to time) is required, and prior to the commencement of the construction works on the building, is granted by the building control authority (within the meaning of section 2 of the Building Control Act 1990, as amended by the Local Government (Dublin) Act 1993 and the Local Government Act 2001) in whose functional area the building is situated,

where-

(I) the house is, or (as the case may be) the house and the building in which it is comprised are, designed and constructed to meet the needs of persons with disabilities, including in particular the needs of persons who are confined to wheelchairs, and

(II) the house consists of 1 or 2 bedrooms, a kitchen, a living room, bath or shower facilities, toilet facilities and a nurse call system linked to the registered nursing home,

(c) is comprised ina development of not less than 10 qualifying residential units where-

(i) that development also includes a day-care centre,

(ii) those units are operated or managed by the registered nursing home and an on-site caretaker is provided,

(iii) back-up medical care, including nursing care, is provided by the registered nursing home to the occupants of those units when required by those occupants,

(iv) not less than 20 per cent of those units are made available for renting to persons who are eligible for a rent subsidy from [the Health Service Executive, subject to service requirements to be specified by the Health Service Executive in advance and to the condition that nothing in this subparagraph shall require the Health Service Executive to take up all or any of the units so made available, and

(v) the rent to be charged in respect of any such unit made available in accordance with subparagraph (iv) is not more than 90 per cent of the rent which would be charged if that unit were rented to a person who is not in receipt of a subsidy referred to in that subparagraph,

and

(d)(i) is leased to a person and, as the case may be, the spouse or civil partner of that person-

(I) who is or, as the case may be, are not connected (within the meaning of section 10) with the lessor,

(II) who has or have been selected as the occupant or occupants of the house by the registered nursing home, and

(III) either the person or the spouse or civil partner of that person has been certified by a person, who is registered in the General Register of Medical Practitioners, as requiring such accommodation by reason of old age or infirmity,

or

(ii) is leased to the registered nursing home on condition that it will be subsequently leased to a person or persons referred to in subparagraph (i) and which is subsequently used for no other purpose other than use by such person or persons.

Finance Act 2004 section 23(1).

Finance Act 2005 section 147.

Finance Act 2007 section 28(1)(a).

Finance Act 2006 section 37(a).

Finance (No. 3) Act 2011 section 1(2).

(3B)(a) For the purposes of this section “house”, in relation to a qualifying residential unit, has the same meaning as in section 372AK.

(b) For the purposes only of the making of allowances and charges under this Part but subject to subsection (3C) and sections 270 and 316 (as amended by the Finance Act 2007), as respects capital expenditure incurred in the period commencing on 25 March 2002 and ending on 30 April 2010, a house in use as a qualifying residential unit shall be deemed to be a building in use for the purposes of a trade referred to in subsection (1)(g).

(3C) Subsection (3B) shall not apply in respect of expenditure incurred on the construction of a qualifying residential unit where any part of that expenditure has been or is to be met, directly or indirectly by grant assistance or any other assistance which is granted by or through the State any board established by statute, any public or local authority or any other agency of the State.

(3D) Where the relevant interest in relation to capital expenditure incurred on the construction or refurbishment of all qualifying residential units in a development is held by a company (within the meaning of section 4(1)) then subsection (3A) shall apply as if subparagraphs (iv) and (v) of paragraph (c) of that subsection were deleted.

Amendments

Finance Act 2007 section 28(1)(a).

(3E) A house shall not be a qualifying residential unit for the purposes of this section unless-

(a) the following information has been provided to the Health Service Executive, by the person who is entitled to the relevant interest in relation to the capital expenditure incurred on the construction or refurbishment of the house, for onward transmission to the Minister for Health and Children and the Minister for Finance:

(i) the amount of the capital expenditure actually incurred on the construction or refurbishment of the house;

(ii) the number and nature of the investors that are investing in the house;

(iii) the amount to be invested by each investor; and

(iv) the nature of the structures which are being put in place to facilitate the investment in the house,

together with such other information as may be specified by the Minister for Finance, in consultation with the Minister for Health and Children, as being of assistance in evaluating the costs, including but not limited to exchequer costs, and the benefits arising from the operation of tax relief under this Part for qualifying residential units,

(b) the Health Service Executive, in consultation with the Minister for Health and Children, gives a certificate in writing after the house is first leased or, where capital expenditure is incurred on the refurbishment of a house, first leased subsequent to the incurring of that expenditure stating that it is satisfied that-

(i) the house and the development in which it is comprised complies with all the conditions mentioned in paragraphs (a), (b), (c) and (d) of subsection (3A), and

(ii) the information required in accordance with paragraph (a) of this subsection has been provided,

and

(c) an annual report in writing is provided, by the person who is entitled to the relevant interest in relation to the capital expenditure incurred on the construction or refurbishment of the house, to the Health Service Executive, for onward transmission to the Minister for Health and Children and the Minister for Finance, by the end of each year in the 20 year period referred to in section 272(4)(fa) (inserted by the Finance Act 2007), which-

(i) confirms whether the house and the development in which it is comprised continue to comply with all the conditions mentioned in paragraphs (a), (b), (c) and (d) of subsection (3A), and

(ii) provides details of the level of occupation of the house for the previous year including the age of and, as the case may be, the nature of the infirmity of the occupants.

Amendments

Finance Act 2007 section 28(1)(a).

(4) Where capital expenditure is incurred on preparing, cutting tunnelling or levelling land for the purposes of preparing the land as a site for the installation of machinery or plant, the machinery or plant shall, as regards that expenditure be treated for the purposes of this Chapter as a building or structure.

(5) For the purposes of this Part, expenditure incurred by a person on or after the 23rd day of April, 1996, either on the construction of, or on the acquisition of the relevant interest in, a building or structure not situated in the State shall not be treated as expenditure on a building or structure within the meaning of this section unless, being a building or structure not situated in the State-

(a) it is a building or structure which is to be constructed or which is in the course of construction and in respect of which it can be shown that-

(i) the person has either entered into a binding contract in writing for the acquisition of the site for the building or structure or has entered into an agreement in writing in relation to an option to acquire that site on or before the 23rd day of April, 1996,

(ii) the person has entered into a binding contract in writing for the construction of the building or structure on or before the 1st day of July, 1996, and

(iii) the construction of the building or structure had commenced on or before the 1st day of July, 1996, and had been completed before the [30th day of September, 1998,

and

(b) it is a building or structure to be constructed or which is being constructed which will be used for the purposes of a trade the profits or gains from which are taxable in the State.

(5A) Subject to subsection (5C), expenditure incurred by a person on the construction of an industrial building or structure (within the meaning of subsection (1)(n)) shall be treated as specified capital expenditure for the purposes of this Part—

(a) only to the extent that the aggregate of such expenditure does not exceed—

(i) €5,000,000, where the person concerned is a company, and

(ii) €1,250,000, where the person concerned is an individual,

and

(b) where the following information has been provided to the Revenue Commissioners before the first claim for a writing-down allowance is made, in accordance with section 272, by the person:

(i) the name, address and tax reference number (within the meaning of section 477B(1)) of the person making the claim;

(ii) the address of the building or structure in respect of which the expenditure was incurred or deemed to have been incurred;

(iii) details of the aggregate of the amount of such expenditure which has been incurred or deemed to have been incurred by the person making the claim.

Amendments

(5B) Notwithstanding any obligation to the contrary imposed on them by section 851A, the Revenue Commissioners may furnish to one or more persons such information as is referred to in subsection (5A)(b) where the Revenue Commissioners are satisfied that doing so is necessary to ensure compliance with the provisions of this Part and any European Commission guidelines, regulations or other reporting requirements, as the case may be, that may be relevant.

(5C) Where capital expenditure has been incurred, or deemed to have been incurred, on the construction of an industrial building or structure (within the meaning of subsection (1)(n)) by 2 or more persons being either individuals or companies, or both, the  amount of such expenditure which is to be treated as specified capital expenditure for the purposes of this Part shall, if necessary and notwithstanding section 279, be reduced such that the amount determined by the formula-

 (A x 50 per cent) + (B x 12½ per cent)

does not exceed €625,000, where—

A is the aggregate of all such specified capital expenditure which has been incurred, or deemed to have been incurred, by the individual or individuals concerned, and

B is the aggregate of all such specified capital expenditure which has been incurred, or deemed to have been incurred, by the company or companies concerned.

Amendments

Finance Act 2015 section 27(1)(iv).

Amendments

Finance Act 2015 section 27(1)(v).

(6) Subsection (1) shall apply in relation to a part of a trade as it applies in relation to a trade but, where part only of a trade complies with the conditions set out in that subsection, a building or structure shall not by virtue of this subsection be an industrial building or structure unless it is in use for the purposes of that part of that trade.

(7)(a) In this subsection, “retail shop” includes any premises of a similar character where retail trade or business (including repair work) is carried on.

(b) Notwithstanding anything in subsections (1) to (6) but subject to subsection (8), in this Part, “industrial building or structure” does not include any building or structure in use as, or as part of, a dwelling house (other than a holiday cottage referred to in subsection (3) or a qualifying residential unit), retail shop, showroom or office or for any purpose ancillary to the purposes of a dwelling house (other than a holiday cottage referred to in subsection (3) [or a qualifying residential unit), retail shop, showroom or office.

(8) Where part of the whole of a building or structure is, and part of the whole of the building or structure is not, an industrial building or structure, and the capital expenditure incurred on the construction of the second-mentioned part is not more than 10 per cent of the total capital expenditure incurred on the construction of the whole building or structure, the whole building or structure and every part of the whole of the building or structure shall be treated as an industrial building or structure.

(9) Subsection (1) shall apply-

(a) by reference to paragraph (a)(ii), as respects capital expenditure incurred on or after the 25th day of January, 1984,

(b) by reference to paragraph (e), as respects capital expenditure incurred on or after the 6th day of April, 1971,

(c) by reference to paragraph (f), as respects capital expenditure incurred on or after the 24th day of April, 1992,

(d) by reference to paragraph (g), as respects capital expenditure incurred in the period commencing on 3 December 1997 and ending—

(i) on 31 December 2009, or

(ii) where subsection (17)(a) applies, on 30 June 2010, or

(iii) where subsection (17)(b) applies, on 30 June 2011,

(e) by reference to paragraph (h), as respects capital expenditure incurred-

(i) by Dublin Airport Authority on or after the vesting day, and

(ii) by any other person on or after the date of the passing of the Finance Act, 1998,

(f) by reference to paragraph (i), as respects capital expenditure incurred in the period commencing on 2 December 1998 and ending—

(i) on 31 December 2009, or

(ii) where subsection (17)(a) applies, on 30 June 2010, or

(iii) where subsection (17)(b) applies, on 30 June 2011,

(g) by reference to paragraph (j), as respects capital expenditure incurred in the period commencing—

(i) where subsection (2A)(d)(i) applies, on 15 May 2002, or

(ii) where subsection (2A)(d)(ii) applies, on 28 March 2003, and ending—

(I) on 31 December 2009, or

(II) where subsection (17)(a) applies, on 30 June 2010, or

(III) where subsection (17)(b) applies, on 31 December 2013,

(h) by reference to paragraph (k), as respects capital expenditure incurred in the period commencing on 15 May 2002 and ending on 31 December 2006 or, where subsection (16) applies, ending on 31 July 2008,

(i) by reference to paragraph (l), as respects capital expenditure incurred in the period commencing on 23 January 2007 and ending—

(i) on 31 December 2009, or

(ii) where subsection (17)(a) applies, on 30 June 2010, or

(iii) where subsection (17)(b) applies, on 30 June 2011

(j) by reference to paragraph (m), as respects capital expenditure incurred on or after the date of the passing of the Finance Act 2008, and

(k) by reference to paragraph (n), as respects—

(i) specified capital expenditure incurred in the period commencing on the date of the coming into operation of section 31 of the Finance Act 2013 and ending on the fifth anniversary of that date, and

(ii) capital expenditure other than specified capital expenditure incurred on or after the date of the coming into operation of section 31 of the Finance Act 2013.

Amendments

Finance Act 1998 section 22(a)(ii).

Finance Act 1999 section 48(a)(ii).

Finance Act 2001 section 64(1)(a).

Finance Act 2006 section 36.

Finance Act 2006 section 28(b).

Finance Act 2008 section 141.

Finance Act 2008 section 26(1)(a).

Finance Act 2009 section 8.

Finance Act 2013 section 31(1)(d).

 Finance Act 2015 section 27(1)(vi).

(10) For the purposes of this Part—

“Dublin Airport Authority” means the Dublin Airport Authority, public limited company, and includes—

(a) where a day has been appointed under section 5 of the State Airports Act 2004 in respect of the Cork Airport Authority, public limited company, that company, and

(b) where a day has been appointed under the said section 5 in respect of the Shannon Airport Authority, public limited company, that company;

“vesting day” means the day appointed by order under section 9(6) of the State Airports Act 2004 in respect of the Dublin Airport Authority and such other day or days as may be appointed by order or orders under section 5 of the State Airports Act 2004 in respect of the Cork Airport Authority, public limited company, and the Shannon Airport Authority, public limited company.

Amendments

Finance Act 1998 section 20(a)(iii).

(11) Notwithstanding any other provision of this section, as respects capital expenditure incurred on or after 20 March 2001, a building or structure in use for the purposes of the trade of hotel-keeping shall not be treated as an industrial building or structure where any part of that expenditure has been or is to be met, directly or indirectly, by grant assistance or any other assistance which is granted by or through the State, any board established by statute, any public or local authority or any other agency of the State.

Amendments

Finance Act 2001 section 81.

Finance Act 2002 section 22(1)(a).

(11A) Notwithstanding any other provision of this Part, capital expenditure which has been incurred on the construction of an industrial building (within the meaning of subsection (1)(n)) shall not be treated as specified capital expenditure where any part of that expenditure has been or is to be met, directly or indirectly, by grant assistance or any other assistance which is granted by or through the State, any board established by statute, any public or local authority or any other agency of the State.

Amendments

Finance Act 2015 section 27(1)(vii).

(12) Notwithstanding any other provision of this section, as respects capital expenditure incurred on the construction or refurbishment of a building or structure in respect of which construction or refurbishment first commences on or after 6 April 2001 (being capital expenditure in respect of which but for this subsection a writing-down allowance in excess of 4 per cent would be available under section 272 for a chargeable period), a building or structure in use for the purposes of the trade of hotel-keeping shall not be treated as an industrial building or structure unless, on the making of an application by the person who incurs the capital expenditure on the construction or refurbishment of the building or structure, the National Tourism Development Authority gives a certificate in writing to that person, in relation to that expenditure, stating-

(a) that it has received a declaration from that person as to whether or not that person is-

(i) a small or medium-sized enterprise within the meaning of Annex I to Commission Regulation (EC) No. 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the European Communities Treaty to State aid to small and medium-sized enterprises (OJ No. L10 of 13 January 2001, p. 33), or,

(ii) a micro, small or medium-sized enterprise, within the meaning of the Annex to Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ No. L124 of 20 May 2003, p. 36),

(b) that the expenditure concerned falls within the meaning of “initial investment” contained in point 4.4 of the“Guidelines on National Regional Aid” (O.J. No. C 74, 10.3.1998, p. 9) prepared by the Commission of the European Communities,

(c) that in the case of expenditure incurred on or after 1 January 2003 on the construction or refurbishment of a building or structure provided for the purposes of a project which is subject to the notification requirements of-

(i) the “Multisectoral framework on regional aid for large investment projects” (OJ No. C 107, 7.4.1998 p. 7) prepared by the Commission of the European Communities and dated 7 April 1998, or

(ii) the “Multisectoral framework on regional aid for large investment projects” (OJ No. C 70, 19.3.2002, p. 8) prepared by the Commission of the European Communities and dated 19 March 2002,

as the case may be, approval of the potential capital allowances involved[, or part thereof has been received from that Commission by the Minister for Finance, or by such other Minister of the Government, agency or body as may be nominated for that purpose by the Minister for Finance, and

(d) that such person has undertaken to furnish to the Minister for Finance, or to such other Minister of the Government, agency or body as may be nominated for that purpose by the Minister for Finance, upon request in writing by the Minister concerned or that agency or body, such further information as may be necessary to enable compliance with the reporting requirements of-

(i) [the Regulation or Recommendation referred to in paragraph (a) or the Multisectoral framework referred to in paragraph (c),

(ii) “Community guidelines on State aid for rescuing and restructuring firms in difficulty” (O.J. No. C 288, 9.10.1999, p. 2) prepared by the Commission of the European Communities [or as the case may be, “Community guidelines on State aid for rescuing and restructuring firms in difficulty” (OJ No. C244 of 1 October 2004, p. 2) prepared by that Commission, or

(iii) any other European Communities Regulation or Directive under the European Communities Treaty governing the granting of State aid in specific sectors.

Finance Act 2002 section 22(1)(b).

Finance Act 2005 section 34(a).

Finance Act 2006 section 127.

(12A)(a) Where the National Tourism Development Authority gives a certificate in writing to the person who has incurred the capital expenditure on the construction or refurbishment of the building or structure stating that the approval referred to in subsection (12)(c) has been received, the building or structure shall, for the purposes of this Part, be treated as an industrial building or structure from the date on which it was first used for the purposes of the trade of hotel-keeping, and tax shall be discharged or repaid accordingly in giving effect to the allowances to be made under this Part.

(b) Where the Commission of the European Communities has approved an amount—

(i) which is lower than the amount of capital expenditure actually incurred on the construction or refurbishment of the building or structure, then, for the purposes of this Part, that lower amount shall be substituted for the amount actually incurred, or

(ii) which is lower than the amount of the net price paid within the meaning of section 279, that section shall apply as if the reference to the net price paid in subsection (2)(b) were a reference to the lower amount so approved.

Amendments

Finance Act 2003 section 25(1)(a).

(14) Subject to subsection (15), a building or structure in use for the purposes of the trade of hotel-keeping (but not including a building or structure deemed to be such a building or structure) shall not, as respects capital expenditure incurred on or after 3 February 2005 on its construction (within the meaning of section 270), be treated as an industrial building or structure unless the building or structure is registered in the register of hotels kept under the Tourist Traffic Acts 1939 to 2003.

Amendments

Finance Act 2005 section 34(a)(iv).

(15)

Amendments

Finance Act 2005 section 34(a)(iv).

It extended allowances in respect of non-registered hotels in relation to capital expenditure incurred on or before 31 July 2006 provided a valid full (i.e. non-“outline”) planning application was made and was confirmed as received by the planning authority before 31 December 2004 (or 10 March 2002 as appropriate).

(16) This subsection shall apply in relation to the construction or refurbishment of a qualifying sports injuries clinic where-

(a) the person who is constructing or refurbishing the clinic has, on or before 31 December 2006 carried out work to the value of not less than 15 per cent of the actual construction or, as the case may be, refurbishment costs of the clinic, and

(b) the person referred to in paragraph (a) or, where the clinic is sold by that person, the person who is claiming a deduction under this Chapter in relation to the expenditure incurred, can show that the condition in paragraph (a) was satisfied.

(17)(a) This paragraph shall apply where—

(i) capital expenditure is incurred on the construction or refurbishment of a building or structure referred to in paragraphs (g), (i), (j) or (l) of subsection (1),

(ii) the construction or refurbishment work on the building or structure represented by that expenditure is exempted development for the purposes of the Planning and Development Act 2000 by virtue of section 4 of that Act or by virtue of Part 2 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (in this subsection referred to as the “Regulations of 2001”), and

(iii) not less than 30 per cent of the total construction or refurbishment costs has been incurred on or before 31 December 2009.

(b) This paragraph shall apply where—

(i) capital expenditure is incurred on the construction or refurbishment of a building or structure referred to in paragraphs (g), (i), (j) or (l) of subsection (1),

(ii) a planning application (not being an application for outline permission within the meaning of section 36 of the Planning and Development Act 2000), in so far as planning permission is required, in respect of the construction or refurbishment work on the building or structure represented by that expenditure, is made in accordance with the Regulations of 2001,

(iii) an acknowledgement of the application, which confirms that the application was received on or before 31 December 2009, is issued by the planning authority in accordance with article 26(2) of the Regulations of 2001, and

(iv) the application is not an invalid application in respect of which a notice was issued by the planning authority in accordance with article 26(5) of the Regulations of 2001.