First Previous (PART 5 Provisions Relating to Gifts and Inheritances) Next (PART 7 Payment and Recovery of Tax, Interest and Penalties)

1 2003

Capital Acquisitions Tax Consolidation Act 2003

PART 6

Returns and Assessments

Accountable persons.

[CATA 1976 s35]

45. —(1) The person primarily accountable for the payment of tax shall be—

(a) except where provided in paragraph (b), the donee or successor, as the case may be, and

(b) in the case referred to in section 32 (2), the transferee referred to in that subsection, to the extent referred to in that subsection.

(2) Subject to subsections (3) and (4), the following persons shall also be accountable for the payment of any amount of the tax for which the persons referred to in subsection (1) are made primarily accountable—

(a) in the case of a gift—

(i) the disponer (other than a disponer in relation to a disposition where the date of the disposition was prior to 28 February 1974), and

(ii) every trustee, guardian, committee, personal representative, agent or other person in whose care any property comprised in the gift or the income from such property is placed at the date of the gift or at any time after that date and every person in whom the property is vested after that date, other than a bona fide purchaser or mortgagee for full consideration in money or money's worth, or a person deriving title from or under such a purchaser or mortgagee,

(b)  (i) in the case of an inheritance, taken on or before the death of the disponer, the disponer (other than a disponer in relation to a disposition, where the date of the disposition was prior to 1 May 1989), and

(ii) in the case of any other inheritance, every trustee, guardian, committee, personal representative, agent or other person in whose care any property comprised in the inheritance or the income from such property is placed at the date of the inheritance or at any time after that date and every person in whom the property is vested after that date, other than a bona fide purchaser or mortgagee for full consideration in money or money's worth, or a person deriving title from or under such a purchaser or mortgagee.

(3) No person referred to in subsection (2)(a)(ii) or (b)(ii) is (unless that person is a person who is also primarily accountable under subsection (1)) liable for tax chargeable on any gift or inheritance to an amount in excess of—

(a) the market value of so much of the property of which the gift or inheritance consists, and

(b) so much of the income from such property,

which has been received by that person, or which, but for that person's own neglect or default, would have been received by that person or to which that person is beneficially entitled in possession.

(4) A person who acts solely in the capacity of an agent is not liable for tax chargeable on a gift or inheritance to an amount in excess of the market value of so much of the property of which the gift or inheritance consists and of the income from such property which that person held, or which came into that person's possession, at any time after the serving on that person of the notice referred to in subsection (5).

(5) The Commissioners may serve on any person who acts solely in the capacity of agent in relation to any property comprised in a gift or an inheritance a notice in writing informing that person of that person's liability under this section.

(6) The tax shall be recoverable from any one or more of—

(a) the accountable persons, and

(b) the personal representatives of any accountable persons who are dead,

on whom the Commissioners have served notice in writing of the assessment of tax in exercise of the power conferred on them by section 49 , but the liability of a personal representative under this subsection shall not exceed the amount for which the accountable person, of whom that person is the personal representative, was liable.

(7) Any person referred to in subsection (2)(a) or (b) or in subsection (6)(b) who is authorised or required to pay, and pays, any tax in respect of any property comprised in a gift or in an inheritance may recover the amount paid by that person in respect of tax from the person primarily accountable for that tax unless—

(a) the latter person is the donee or successor referred to in paragraph (a) of subsection (1) and the interest taken by that latter person is a limited interest, or

(b) in the case referred to in paragraph (b) of subsection (1), the latter person is the transferee and the interest taken by the remainderman is a limited interest.

(8) A person—

(a) who is primarily accountable for the payment of tax, or

(b) referred to in subsection (2)(a) or (b) or in subsection (6)(b) who is authorised or required to pay tax,

in respect of any property shall, for the purpose of paying the tax, or raising the amount of the tax when already paid, have power, whether the property is or is not vested in that person, to raise the amount of such tax and any interest and expenses properly paid or incurred by that person in respect thereof, by the sale or mortgage of, or a terminable charge on, that property or any part of that property.

(9) If a person, who is primarily accountable for the payment of tax in respect of a gift or inheritance (in this subsection and in subsection (11) referred to as the first gift or inheritance) derived from a disponer, has not paid the tax on the first gift or inheritance, the Commissioners may serve a notice in writing in accordance with subsection (11) on any person who is, by virtue of paragraph (a)(ii) or (b)(ii) of subsection (2), accountable for the payment of tax on any other gift or inheritance (referred to in subsections (10) and (11) as the second gift or inheritance) taken by the same donee or successor from the same disponer, and the person on whom the notice is served shall at that time become accountable for the payment of tax in respect of the first gift or inheritance.

(10) Subsections (3), (4), (5), (6), (7) and (8) shall apply in relation to a person made accountable under subsection (9) as they apply in relation to a person referred to in paragraph (a)(ii) or (b) of subsection (2) and, for the purposes of this subsection—

(a) references in subsections (3) and (4) to the property of which the gift or inheritance consists, and

(b) the second and third references to property in subsection (8),

shall be construed as references to the property of which the second gift or inheritance consists, in so far as the last-mentioned property had not been duly paid out at the date of the service of the notice under subsection (9).

(11) A notice under subsection (9) shall refer expressly to the first and the second gift or inheritance, and shall inform the person on whom it is served of that person's accountability in respect of the first gift or inheritance.

(12) Every public officer having in such person's custody any rolls, books, records, papers, documents, or proceedings, the inspection of which may tend to secure the tax, or to prove or lead to the discovery of any fraud or omission in relation to the tax, shall at all reasonable times permit any person authorised by the Commissioners to inspect the rolls, books, records, papers, documents and proceedings, and to take notes and extracts as that person may deem necessary.

Delivery of returns

[CATA 1976 s36]

46. —(1) In this section—

(a) notwithstanding anything contained in sections 6 and 11 a reference, other than in subsection (13) or (14), to a gift or a taxable gift includes a reference to an inheritance or a taxable inheritance, as the case may be, and

(b) a reference to a donee includes a reference to a successor.

(2) Subject to paragraph (e) of section 21 , any person who is primarily accountable for the payment of tax by virtue of section 45 (1), or by virtue of paragraph (c) of section 16 shall, within 4 months after the relevant date referred to in subsection (5)

(a) deliver to the Commissioners a full and true return of—

(i) every gift in respect of which that person is so primarily accountable,

(ii) all the property comprised in such gift on the valuation date,

(iii) an estimate of the market value of such property on the valuation date, and

(iv) such particulars as may be relevant to the assessment of tax in respect of such gift;

(b) notwithstanding section 49 , make on that return an assessment of such amount of tax as, to the best of that person's knowledge, information and belief, ought to be charged, levied and paid on that valuation date, and

(c) duly pay the amount of such tax.

(3) Subsection (2)(c) shall be complied with—

(a) where the tax due and payable in respect of any part of the gift is being paid by instalments under section 54 , by the due payment of—

(i) an amount which includes any instalment of tax which has fallen due prior to or on the date of the assessment of the tax referred to in subsection (2)(b), and

(ii) any further instalments of such tax on the due dates in accordance with that section;

(b) where the tax due and payable is inheritance tax which is being wholly or partly paid by the transfer of securities to the Minister for Finance under section 58 , by—

(i) delivering to the Commissioners with the return an application to pay all or part of the tax by such transfer,

(ii) completing the transfer of the securities to the Minister for Finance within such time, not being less than 30 days, as may be specified by the Commissioners by notice in writing, and

(iii) duly paying the excess, if any, of the amount of the tax referred to in subsection (2)(b), or in paragraph (a)(i), over the nominal face value of the securities tendered in payment of the tax in accordance with subparagraph (i).

(4) Subsection (2) applies to a charge for tax arising by reason of section 15 and to any other gift where—

(a) the aggregate of the taxable values of all taxable gifts taken by the donee on or after 5 December 1991, which have the same group threshold (as defined in Schedule 2) as that other gift, exceeds an amount which is 80 per cent of the threshold amount (as defined in Schedule 2) which applies in the computation of tax on that aggregate, or

(b) the donee or, in a case to which section 32 (2) applies, the transferee (within the meaning of, and to the extent provided for by, that section) is required by notice in writing by the Commissioners to deliver a return,

and for the purposes of this subsection, a reference to a gift includes a reference to a part of a gift or to a part of a taxable gift, as the case may be.

(5) For the purposes of this section, the relevant date shall be—

(a) the valuation date, or

(b) where the donee or, in a case to which section 32 (2) applies, the transferee (within the meaning of, and to the extent provided for by, that section) is required by notice in writing by the Commissioners to deliver a return, the date of the notice.

(6) Any person who is accountable for the payment of tax by virtue of subsection (2) or (9) of section 45 shall, if that person is required by notice in writing by the Commissioners to do so, comply with paragraphs (a), (b) and (c) of subsection (2) (as if that person were a person primarily accountable for the payment of tax by virtue of section 45 (1)) within such time, not being less than 30 days, as may be specified in the notice.

(7) (a) Any accountable person shall, if that person is so required by the Commissioners by notice in writing, deliver and verify to the Commissioners within such time, not being less than 30 days, as may be specified in the notice—

(i) a statement (where appropriate, on a form provided, or approved of, by them) of such particulars relating to any property, and

(ii) such evidence as they require,

as may, in their opinion, be relevant to the assessment of tax in respect of the gift.

(b) The Commissioners may authorise a person to inspect—

(i) any property comprised in a gift, or

(ii) any books, records, accounts or other documents, in whatever form they are stored, maintained or preserved, relating to any property as may in their opinion be relevant to the assessment of tax in respect of a gift,

and the person having the custody or possession of that property, or of those books, records, accounts or documents, shall permit the person so authorised to make that inspection at such reasonable times as the Commissioners consider necessary.

(8) The Commissioners may by notice in writing require any accountable person to—

(a) deliver to them within such time, not being less than 30 days, as may be specified in the notice, an additional return, if it appears to the Commissioners that a return made by that accountable person is defective in a material respect by reason of anything contained in or omitted from it,

(b) notwithstanding section 49 , make on that additional return an assessment of such amended amount of tax as, to the best of that person's knowledge, information and belief, ought to be charged, levied and paid on the relevant gift, and

(c) duly pay the outstanding tax, if any, for which that person is accountable in respect of that gift,

and

(i) the requirements of subparagraphs (ii), (iii) and (iv) of subsection (2)(a) shall apply to such additional return required by virtue of paragraph (a), and

(ii) subsection (3) shall, with any necessary modifications, apply to any payment required by virtue of paragraph (c).

(9) Where any accountable person who has delivered a return or an additional return is aware or becomes aware at any time that the return or additional return is defective in a material respect by reason of anything contained in or omitted from it, that person shall, without application from the Commissioners and within 3 months of so becoming aware—

(a) deliver to them an additional return,

(b) notwithstanding section 49 , make on that additional return an assessment of such amended amount of tax as, to the best of that person's knowledge, information and belief, ought to be charged, levied and paid on the relevant gift, and

(c) duly pay the outstanding tax, if any, for which that person is accountable in respect of that gift,

and

(i) the requirements of subparagraphs (ii), (iii) and (iv) of subsection (2)(a) shall apply to such additional return required by virtue of paragraph (a), and

(ii) subsection (3) shall, with any necessary modifications, apply to any payment required by virtue of paragraph (c).

(10) Any amount of tax payable by an accountable person in respect of an assessment of tax made by that accountable person on a return delivered by that accountable person (other than an amount of that tax payable by the transfer of securities to the Minister for Finance under section 56 ) shall accompany the return and be paid to the Collector.

(11) Any assessment or payment of tax made under this section shall include interest on tax payable in accordance with section 51 .

(12) The Commissioners may by notice in writing require any person to deliver to them within such time, not being less than 30 days, as may be specified in the notice, a full and true return showing details of every taxable gift (including the property comprised in such gift) taken by that person during the period specified in the notice or, as the case may be, indicating that that person has taken no taxable gift during that period.

(13) As respects a taxable gift to which this subsection applies, any accountable person who is a disponer shall within 4 months of the valuation date deliver to the Commissioners a full and true return—

(a) of all the property comprised in such gift on the valuation date,

(b) of an estimate of the market value of such property on the valuation date, and

(c) of such particulars as may be relevant to the assessment of tax in respect of the gift.

(14) Subsection (13) applies to a taxable gift, in the case where—

(a) the taxable value of the taxable gift exceeds an amount which is 80 per cent of the group threshold (as defined in Schedule 2) which applies in relation to that gift for the purposes of the computation of the tax on that gift,

(b) the taxable value of the taxable gift taken by the donee from the disponer increases the total taxable value of all taxable gifts and taxable inheritances taken on or after 5 December 1991 by the donee from the disponer from an amount less than or equal to the amount specified in paragraph (a) to an amount which exceeds the amount so specified, or

(c) the total taxable value of all taxable gifts and taxable inheritances taken on or after 5 December 1991 by the donee from the disponer exceeds the amount specified in paragraph (a) and the donee takes a further taxable gift from the disponer.

(15) Where, under or in consequence of any disposition made by a person who is living and domiciled in the State at the date of the disposition, property becomes subject to a discretionary trust, the disponer shall within 4 months of the date of the disposition deliver to the Commissioners a full and true return of—

(a) the terms of the discretionary trust,

(b) the names and addresses of the trustees and objects of the discretionary trust, and

(c) an estimate of the market value at the date of the disposition of the property becoming subject to the discretionary trust.

Signing of returns, etc.

[CATA 1976 s37]

47. —(1) A return or an additional return required to be delivered under this Act shall be signed by the accountable person who delivers the return or the additional return and shall include a declaration by the person signing it that the return or additional return is, to the best of that person's knowledge, information and belief, correct and complete.

(2) The Commissioners may require a return or an additional return to be made on oath.

(3) The Commissioners may, if they so think fit, accept a return or an additional return under this Act that has not been signed in accordance with this section and such return or additional return is deemed to be duly delivered to the Commissioners under this Act.

(4) (a) A return or additional return delivered under this Act shall—

(i) be made on a form provided, or approved of, by the Commissioners, or

(ii) except in a case to which subsection (2) relates but in a case where subsection (3) applies, be in a form approved of by the Commissioners and delivered by any electronic, photographic or other process approved of by them and in circumstances where the use of such process has been agreed by them and subject to such conditions as they may impose.

(b) An affidavit, additional affidavit, account or additional account, delivered under this Act, shall be made on a form provided, or approved of, by the Commissioners.

(5) Any oath or affidavit to be made for the purposes of this Act may be made—

(a) before the Commissioners,

(b) before any officer or person authorised by the Commissioners in that behalf,

(c) before any Commissioner for Oaths or any Peace Commissioner or Notary Public in the State, or

(d) at any place outside the State, before any person duly authorised to administer oaths in that place.

Affidavits and accounts.

[CATA 1976 s38]

48. —(1) In this section, “Inland Revenue affidavit” has the meaning assigned to it by section 22(1)(n) of the Finance Act 1894.

(2) The Inland Revenue affidavit required for an application for probate or letters of administration shall extend to the verification of a statement of the following particulars:

(a) details of all property in respect of which the grant of probate or administration is required and, in the case of a deceased person who died domiciled in the State, details of all property, wherever situate, the beneficial ownership of which, on that person's death, is affected—

(i) by that person's will,

(ii) by the rules for distribution on intestacy, or

(iii) by Part IX or section 56 of the Succession Act 1965 ;

(b) details of any property which was the subject matter of a disposition inter vivos made by the deceased person where the date of the disposition was within 2 years prior to that person's death or of a donatio mortis causa;

(c) details of the inheritances arising under the will or intestacy of the deceased person or under Part IX or section 56 of the Succession Act 1965 , or under the analogous law of another territory, together with a copy of any such will;

(d) particulars of the inheritances (including the property comprised in such inheritances) other than those referred to in paragraphs (b) and (c), arising on the death of the deceased person;

(e) the name and address of each person who takes an inheritance on the death of the deceased person and that person's relationship to the disponer; and

(f) such other particulars as the Commissioners may require for the purposes of this Act.

(3) Where the interest of the deceased person was a limited interest and that person died on or after the date of the passing of this Act, the trustee of the property in which the limited interest subsisted shall deliver an account which shall contain the following particulars—

(a) details of each inheritance arising on the death of the deceased person under the disposition under which the limited interest of the deceased person arose, including the name and address of each person taking such inheritance and that person's relationship to the disponer, and

(b) such other particulars as the Commissioners may require for the purposes of this Act.

(4) If at any time it shall appear that any material error or omission was made in an affidavit or account referred to in this section, the persons liable to deliver an affidavit or account shall be liable to deliver an additional affidavit or an additional account, correcting the error or omission.

Assessment of tax.

[CATA 1976 s39; FA 1989 s75]

49. —(1) Subject to section 46 , assessments of tax under this Act shall be made by the Commissioners.

(2) If at any time it appears that for any reason an assessment was incorrect, the Commissioners may make a correcting assessment, which shall be substituted for the first-mentioned assessment.

(3) If at any time it appears that for any reason too little tax was assessed, the Commissioners may make an additional assessment.

(4) The Commissioners may serve notice in writing of the assessment of tax on any accountable person or, at the request of an accountable person, on that accountable person's agent, or on the personal representative of an accountable person if that person is dead.

(5) Where the place of residence of the accountable person or of that accountable person's personal representative is not known to the Commissioners they may publish in Iris Oifigiúil a notice of the making of the assessment with such particulars of that assessment as they shall think proper and on the publication of the notice in Iris Oifigiúil the accountable person or that accountable person's personal representative, as the case may be, is deemed to have been served with the notice of the assessment on the date of such publication.

(6) Any assessment, correcting assessment or additional assessment under this section may be made by the Commissioners from any return or additional return delivered under section 46 or from any other information in the possession of the Commissioners or from any one or more of these sources.

(7) The Commissioners, in making any assessment, correcting assessment or additional assessment, otherwise than from a return or an additional return which is satisfactory to them, shall make an assessment of such amount of tax as, to the best of their knowledge, information (including information received from a member of the Garda Síochána) and belief, ought to be charged, levied and paid.

(8) Nothing in section 46 shall preclude the Commissioners from making an assessment of tax, a correcting assessment of tax, or an additional assessment of tax, under the provisions of this section.

Computation of tax.

[CATA 1976 s40 (part)]

50. —Subject to sections 18 and 23, the amount of tax payable shall be computed in accordance with Schedule 2.