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39 1997

TAXES CONSOLIDATION ACT, 1997

CHAPTER 6

Other sanctions

Surcharge for late returns.

[FA86 s48; FA88 s16; FA90 s25(1); FA92 s245; FA95 s30(1)]

1084. —(1) (a) In this section—

chargeable person”, in relation to a year of assessment or an accounting period, means a person who is a chargeable person for the purposes of Part 41 ;

return of income” means a return, statement, declaration or list which a person is required to deliver to the inspector by reason of a notice given by the inspector under any one or more of the specified provisions, and includes a return which a chargeable person is required to deliver under section 951 ;

specified return date for the chargeable period” has the same meaning as in section 950 ;

specified provisions” means sections 877 to 881 and 884 , paragraphs (a) and (d) of section 888 (2), and section 1023 ;

tax” means income tax, corporation tax or capital gains tax, as may be appropriate.

(b) For the purposes of this section—

(i) where a person fraudulently or negligently delivers an incorrect return of income on or before the specified return date for the chargeable period, the person shall be deemed to have failed to deliver the return of income on or before that date unless the error in the return of income is remedied on or before that date,

(ii) where a person delivers an incorrect return of income on or before the specified return date for the chargeable period but does so neither fraudulently nor negligently and it comes to the person's notice (or, if he or she has died, to the notice of his or her personal representatives) that it is incorrect, the person shall be deemed to have failed to deliver the return of income on or before the specified return date for the chargeable period unless the error in the return of income is remedied without unreasonable delay,

(iii) where a person delivers a return of income on or before the specified return date for the chargeable period but the inspector, by reason of being dissatisfied with any statement of profits or gains arising to the person from any trade or profession which is contained in the return of income, requires the person, by notice in writing served on the person under section 900 , to do any thing, the person shall be deemed not to have delivered the return of income on or before the specified return date for the chargeable period unless the person does that thing within the time specified in the notice, and

(iv) references to such of the specified provisions as are applied, subject to any necessary modifications, in relation to capital gains tax by section 913 shall be construed as including references to those provisions as so applied.

(2) (a) Subject to paragraph (b), where in relation to a year of assessment or accounting period a chargeable person fails to deliver a return of income on or before the specified return date for the chargeable period, any amount of tax for that year of assessment or accounting period which apart from this section is or would be contained in an assessment to tax made or to be made on the chargeable person shall be increased by an amount (in this subsection referred to as “the surcharge”) equal to—

(i) 5 per cent of that amount of tax, subject to a maximum increased amount of £10,000, where the return of income is delivered before the expiry of 2 months from the specified return date for the chargeable period, and

(ii) 10 per cent of that amount of tax, subject to a maximum increased amount of £50,000, where the return of income is not delivered before the expiry of 2 months from the specified return date for the chargeable period,

and, if the tax contained in the assessment is not the amount of tax as so increased, then, the provisions of the Tax Acts and the Capital Gains Tax Acts (apart from this section), including in particular those provisions relating to the collection and recovery of tax and the payment of interest on unpaid tax, shall apply as if the tax contained in the assessment to tax were the amount of tax as so increased.

(b) In determining the amount of the surcharge, the tax contained in the assessment to tax shall be deemed to be reduced by the aggregate of—

(i) any tax deducted by virtue of any of the provisions of the Tax Acts or the Capital Gains Tax Acts from any income, profits or chargeable gains charged in the assessment to tax in so far as that tax has not been repaid or is not repayable to the chargeable person and in so far as the tax so deducted may be set off against the tax contained in the assessment to tax,

(ii) the amount of any tax credit to which the chargeable person is entitled in respect of any income, profits or chargeable gains charged in the assessment to tax, and

(iii) any other amounts which are set off in the assessment to tax against the tax contained in that assessment.

(3) In the case of a person—

(a) who is a director within the meaning of section 116 , or

(b) to whom section 1017 applies and whose spouse is a director within the meaning of section 116 ,

subsection (2) (b) (i) shall not apply in respect of any tax deducted under Chapter 4 of Part 42 in determining the amount of a surcharge under this section.

(4) (a) Notwithstanding subsections (1) to (3), the specified return date for the chargeable period, being a year of assessment (in paragraph (b) referred to as “the first-mentioned year of assessment”) to which section 66 (1) applies, shall be the date which is the specified return date for the year of assessment following that year.

(b) Paragraph (a) shall only apply if throughout the first-mentioned year of assessment the chargeable person or that person's spouse, not being a spouse in relation to whom section 1016 applies for that year of assessment, was not carrying on a trade or profession set up and commenced in a previous year of assessment.

(5) This section shall apply in relation to an amount of preliminary tax (within the meaning of Part 41 ) whether paid under section 952 or specified in a notice under section 953 as it applies to an amount of tax specified in an assessment.

Corporation tax— late returns: restriction of certain claims for relief.

[FA92 s55(1) and (2); FA95 s66(1) and (2)]

1085. —(1) (a) In this section—

chargeable period” means an accounting period of a company;

group relief” has the meaning assigned to it by section 411 ;

return of income” means a return which a company is required to deliver under section 951 ;

specified return date for the chargeable period” has the same meaning as in section 950 .

(b) Subparagraphs (i), (ii) and (iii) of paragraph (b) of subsection (1) of section 1084 shall apply for the purposes of this section as they apply for the purposes of that section.

(2) Notwithstanding any other provision of the Tax Acts, where in relation to a chargeable period a company fails to deliver a return of income for the chargeable period on or before the specified return date for the chargeable period, then, subject to subsections (3) and (4), the following provisions shall apply:

(a) any claim in respect of the chargeable period under section 308 (4), 396 (2) or 399 (2) shall be so restricted that the amount by which the company's profits of that or any other chargeable period are to be reduced by virtue of the claim shall be 50 per cent of the amount it would have been if this section had not been enacted,

(b) the total amount of group relief which the company may claim in respect of the chargeable period shall not exceed 50 per cent of the company's profits of the chargeable period as reduced by any other relief from tax other than group relief,

(c) the total amount of the loss referred to in subsection (1) of section 420 for the chargeable period and the total amount of the excess referred to in subsection (2), (3) or (6) of that section for that period shall each be treated for the purposes of Chapter 5 of Part 12 as reduced by 50 per cent,

(d) any claim in respect of the chargeable period under section 160 (3) shall be so restricted that the amount of advance corporation tax which is treated as if it were advance corporation tax paid in respect of distributions made by the company in any preceding chargeable period shall be 50 per cent of the amount which would have been so treated if this section had not been enacted, and

(e) the company may not surrender under section 166 (1) more than 50 per cent of the excess of the total amount of advance corporation tax it has paid (and which has not been repaid) in respect of a dividend or dividends paid by it in the chargeable period over the amount of such advance corporation tax which under section 160 (2) is set against its liability to corporation tax for the chargeable period.

(3) Subject to subsection (4), any restriction or reduction imposed by paragraph (a), (b), (c), (d) or (e) of subsection (2) in respect of a chargeable period in the case of a company which fails to deliver a return of income on or before the specified return date for the chargeable period shall apply subject to—

(a) in the case of the restrictions or reductions imposed by paragraph (a), (b) or (c) of subsection (2), a maximum restriction or reduction, as the case may be, of £125,000 in each case for the chargeable period, and

(b) in the case of the restrictions imposed by paragraph (d) or (e) of subsection (2), a maximum restriction of £50,000 in each case for the chargeable period.

(4) Where in relation to a chargeable period a company, having failed to deliver a return of income on or before the specified return date for the chargeable period, delivers that return before the expiry of 2 months from the specified return date for the chargeable period, paragraphs (a) to (e) of subsection (2) shall apply—

(a) as if the references in those paragraphs to “50 per cent” were references to “75 per cent” in the case of paragraphs (a), (b), (d) and (e) and “25 per cent” in the case of paragraph (c), and

(b) subject to—

(i) in the case of the restrictions or reductions imposed by paragraph (a), (b) or (c) of subsection (2), a maximum restriction or reduction, as the case may be, of £25,000 in each case for the chargeable period, and

(ii) in the case of the restrictions imposed by paragraph (d) or (e) of subsection (2), a maximum restriction of £10,000 in each case for the chargeable period.

Publication of names of tax defaulters.

[FA83 s23; FA92 s240(b); WCTIPA93 s3(7); FA97 s158]

1086. —(1) In this section—

the Acts” means—

(a) the Tax Acts,

(b) the Capital Gains Tax Acts,

(c) the Value-Added Tax Act, 1972, and the enactments amending or extending that Act,

(d) the Capital Acquisitions Tax Act, 1976, and the enactments amending or extending that Act,

(e) the statutes relating to stamp duty and to the management of that duty, and

(f) Part VI of the Finance Act, 1983,

and any instruments made thereunder;

tax” means income tax, capital gains tax, corporation tax, value-added tax, gift tax, inheritance tax, residential property tax and stamp duty.

(2) The Revenue Commissioners shall, as respects each relevant period (being the period beginning on the 1st day of January, 1997, and ending on the 30th day of June, 1997, and each subsequent period of 3 months beginning with the period ending on the 30th day of September, 1997), compile a list of the names and addresses and the occupations or descriptions of every person—

(a) on whom a fine or other penalty was imposed by a court under any of the Acts during that relevant period,

(b) on whom a fine or other penalty was otherwise imposed by a court during that relevant period in respect of an act or omission by the person in relation to tax, or

(c) in whose case the Revenue Commissioners, pursuant to an agreement made with the person in that relevant period, refrained from initiating proceedings for the recovery of any fine or penalty of the kind mentioned in paragraphs (a) and (b) and, in place of initiating such proceedings, accepted or undertook to accept a specified sum of money in settlement of any claim by the Revenue Commissioners in respect of any specified liability of the person under any of the Acts for—

(i) payment of any tax,

(ii) payment of interest on that tax, and

(iii) a fine or other monetary penalty in respect of that tax.

(3) Notwithstanding any obligation as to secrecy imposed on them by the Acts or the Official Secrets Act, 1963—

(a) the Revenue Commissioners shall, before the expiration of 3 months from the end of each relevant period, cause each such list referred to in subsection (2) in relation to that period to be published in Iris Oifigiúil, and

(b) the Revenue Commissioners may at any time cause any such list referred to in subsection (2) to be publicised in such manner as they shall consider appropriate.

(4) Paragraph (c) of subsection (2) shall not apply in relation to a person in whose case—

(a) the Revenue Commissioners are satisfied that, before any investigation or inquiry had been commenced by them or by any of their officers into any matter occasioning a liability referred to in that paragraph of the person, the person had voluntarily furnished to them complete information in relation to and full particulars of that matter,

(b) section 72 of the Finance Act, 1988 , or section 3 of the Waiver of Certain Tax, Interest and Penalties Act, 1993 , applied, or

(c) the specified sum referred to in paragraph (c) of subsection (2) does not exceed £10,000.

(5) Any list referred to in subsection (2) shall specify in respect of each person named in the list such particulars as the Revenue Commissioners think fit—

(a) of the matter occasioning the fine or penalty of the kind referred to in subsection (2) imposed on the person or, as the case may be, the liability of that kind to which the person was subject, and

(b) of any interest, fine or other monetary penalty, and of any other penalty or sanction, to which that person was liable, or which was imposed on that person by a court, and which was occasioned by the matter referred to in paragraph (a).