Corporate CGT
TAXES CONSOLIDATION ACT
Part 20
Companies’ Chargeable Gains (ss. 614-629C)
Chapter 1
General
(ss. 614-626C)
614.
Capital distribution derived from chargeable gain of company: recovery of tax from shareholder.
(1)In this section, “capital distribution” has the same meaning as in section 583.
(2)This section shall apply where a person connected with a company resident in the State receives or becomes entitled to receive in respect of shares in the company any capital distribution from the company, other than a capital distribution representing a reduction of capital, and –
(a)the capital so distributed derives from the disposal after the 5th day of April, 1976, of assets in respect of which a chargeable gain accrues to the company, or
(b)the distribution constitutes such a disposal of assets.
(3)Where the corporation tax assessed on the company for the accounting period in which the chargeable gain accrues included any amount in respect of chargeable gains, and any of the tax assessed on the company for that period is not paid within 6 months from the date when it becomes payable by the company, the person referred to in subsection (2) may by an assessment made within 2 years from that date be assessed and charged (in the name of the company) to an amount of that corporation tax –
(a)not exceeding the amount or value of the capital distribution which that person has received or became entitled to receive, and
(b)not exceeding a proportion equal to that person’s share of the capital distribution made by the company of corporation tax on the amount and at the rate charged in respect of that gain in the assessment in which that tax was charged.
(4)A person paying any amount of tax under this section shall be entitled to recover a sum equal to that amount from the company.
(5)This section is without prejudice to any liability of the person receiving or becoming entitled to receive the capital distribution in respect of a chargeable gain accruing to such person by reference to the capital distribution as constituting a disposal of an interest in shares in the company.
615.
Company reconstruction or amalgamation: transfer of assets.
(1)In this section –
“scheme of reconstruction or amalgamation” means a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies;
“trading stock” has the same meaning as in section 89.
(2)
(a)Subject to this section, where –
(i)any scheme of reconstruction or amalgamation involves the transfer of the whole or part of a company’s business to another company,
(ii)
(I)the company acquiring the assets is resident in the State at the time of the acquisition, or the assets are chargeable assets in relation to that company immediately after that time, and
(II)the company from which the assets are acquired is resident in the State at the time of the acquisition, or the assets are chargeable assets in relation to that company immediately before that time,
(iii)the first-mentioned company receives no part of the consideration for the transfer (otherwise than by the other company taking over the whole or part of the liabilities of the business), and
(iv)the company acquiring the assets is not –
(I)an authorised investment company (within the meaning of Part XIII of the Companies Act 1990) that is an investment undertaking (within the meaning of section 739B), or
(II)an authorised ICAV (within the meaning of section 2 of the Irish Collective Asset-management Vehicles Act 2015 (No. 2 of 2015)),
then, in so far as relates to corporation tax on chargeable gains, both companies shall be treated as if any assets included in the transfer were acquired by the one company from the other company for a consideration of such amount as would secure that on the disposal by means of the transfer neither a gain nor a loss would accrue to the company making the disposal, and for the purposes of section 556 the acquiring company shall be treated as if the respective acquisitions of the assets by the other company had been the acquiring company’s acquisition of the assets.
(b)For the purposes of paragraph (a) –
(i)an asset is a ‘chargeable asset’ in relation to a company at any time if, were the asset to be disposed of by the company at that time, any gain accruing to the company would be a chargeable gain, and
(ii)a reference to a company shall apply only to a company which, by virtue of the law of a relevant Member State, is resident for the purposes of tax in such a Member State, and for this purpose –
‘relevant Member State’, in addition to the meaning assigned to that expression by section 616(7), shall be deemed to include the United Kingdom;
‘tax’, in relation to a relevant Member State other than the State, means any tax imposed in the Member State which corresponds to corporation tax in the State.
(2A)
(a)In this subsection ‘division’, ‘merger’, ‘successor company’ and ‘transferor company’ have the same meaning as in section 638A (inserted by the Finance Act 2017).
(b)This section shall apply as if the transfer from a transferor company of all its assets to a successor company as a result of a merger or a division were the transfer of the whole of the company’s business and all the liabilities of the transferor company were the liabilities of the business of that transferor company where, immediately before the merger or division, the transferor company carried on a business.
(3)This section shall not apply in relation to an asset which until the transfer formed part of trading stock of a trade carried on by the company making the disposal, or in relation to an asset which is acquired as trading stock for the purposes of a trade carried on by the company acquiring the asset.
(4)
(a)This section shall not apply in relation to the transfer of a specified intangible asset within the meaning of section 291A where the company acquiring the asset and the company from which the asset is acquired jointly so elect by giving notice, not later than 12 months from the end of the accounting period in which the company acquired the asset, to the Collector-General in such manner as the Revenue Commissioners may require.
(b)Where –
(i)an election is made under paragraph (a) in relation to the transfer of a specified intangible asset, and
(ii)that transfer is not a transfer to which section 400(6) applies,
then, for the purposes of computing any chargeable gain, the transfer of that asset shall be treated, as respects –
(I)the disposal by the company from which the asset was acquired, and
(II)the acquisition by the company acquiring the asset,
as having been made for a consideration equal to the market value of the asset on the date of that transfer.
(4A)
(a)In this subsection –
‘arrangement’ includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable);
‘tax’ means income tax, corporation tax or capital gains tax.
(b)This section shall not apply to a scheme of reconstruction or amalgamation involving the transfer of the whole or part of a company’s business to another company unless it is shown that the reconstruction or amalgamation is effected for bona fide commercial reasons and does not form part of an arrangement the main purpose, or one of the main purposes, of which is the avoidance of liability to tax.
616.
Groups of companies: interpretation.
(1)For the purposes of this section and of the following sections of this Chapter –
(a)subject to sections 617(5), 621(1) and 623(7), a reference to a company or companies shall apply only to a company or companies, as limited by subsection (2), being a company or, as the case may be, companies which, by virtue of the law of a relevant Member State, is or are resident for the purposes of tax in such a relevant Member State, and for this purpose –
‘relevant Member State’, in addition to the meaning assigned to that expression by subsection (7), shall be deemed to include the United Kingdom;
‘tax’, in relation to a relevant Member State other than the State, means any tax imposed in the relevant Member State which corresponds to corporation tax in the State;
and references to a member or members of a group of companies shall be construed accordingly;
(b)a company is an effective 75 per cent subsidiary of another company (in this paragraph referred to as ‘the parent’) at any time if at that time –
(i)the company is a 75 per cent subsidiary (within the meaning of section 9) of the parent,
(ii)the parent is beneficially entitled to not less than 75 per cent of any profits available for distribution to equity holders of the company, and
(iii)the parent would be beneficially entitled to not less than 75 per cent of the assets of the company available for distribution to its equity holders on a winding up,
and sections 413 to 419 shall apply for the purposes of this paragraph as they apply for the purposes of Chapter 5 of Part 12;
(bb)a principal company and all its effective 75 per cent subsidiaries shall form a group, and where a principal company is a member of a group as being itself an effective 75 per cent subsidiary that group shall comprise all its effective 75 per cent subsidiaries;
(c)”principal company” means a company of which another company is an effective 75 per cent subsidiary;
(d)in applying the definition of “75 per cent subsidiary” in section 9, any share capital of a registered industrial and provident society shall be treated as ordinary share capital;
(e)”group” and “subsidiary” shall be construed with any necessary modifications where applied to a company incorporated under the law of a country outside the State;
(f)an asset is a ‘chargeable asset’ in relation to a company at any time if, were the asset to be disposed of by the company at that time, any gain accruing to the company would be a chargeable gain.
(g)Notwithstanding paragraph (b) –
(i)a company (in this paragraph referred to as the ‘first-mentioned company’) shall be an effective 75 per cent subsidiary of the National Asset Management Agency where that Agency directly owns any part of the ordinary share capital of that company, and
(ii)any other company which is an effective 75 per cent subsidiary of the first-mentioned company shall be an effective 75 per cent subsidiary of the National Asset Management Agency.
(2)For the purposes of this section and of the following sections of this Part, references to a company shall apply only to –
(a)a company within the meaning of the Companies Act 2014,
(b)a company constituted under any other Act or a charter or letters patent or formed under the law of a country or territory outside the State,
(c)a registered industrial and provident society, being a society within the meaning of section 698, and
(d)a building society incorporated or deemed by virtue of section 124(2) of the Building Societies Act, 1989, to be incorporated under that Act.
(3)For the purposes of this section and of the following sections of this Part, a group shall remain the same group so long as the same company remains the principal company of the group and, if at any time the principal company of a group becomes an effective 75 per cent subsidiary of another company, the group of which it was the principal company before that time shall be regarded as the same as the group of which that other company is the principal company or an effective 75 per cent subsidiary, and the question whether or not a company has ceased to be a member of a group shall be determined accordingly.
(3A)Where at any time the principal company of a group –
(a)
(i)becomes an SE by reason of being the acquiring company in the formation of an SE by merger by acquisition (in accordance with Articles 2(1), 17(2)(a) and 29(1) of the SE Regulation (within the meaning of section 630)),
(ii)becomes a subsidiary of a holding SE (formed in accordance with Article 2(2) of that Regulation), or
(iii)is transformed into an SE (in accordance with Article 2(4) of that Regulation),
or
(b)becomes an SCE in the course of a merger in accordance with Article 2 of the SCE Regulation (within the meaning of section 630),
then the group of which it was the principal company before that time and any group of which the SE, or as the case may be the SCE, is a member on formation shall be regarded as the same, and the question of whether or not a company has ceased to be a member of a group shall be determined accordingly.
(4)For the purposes of this section and of the following sections of this Part, the passing of a resolution or the making of an order or any other act for the winding up of a company shall not be regarded as the occasion of that company or of any effective 75 per cent subsidiary of that company ceasing to be a member of a group of companies.
(5)
(a)The following sections of this Part, except in so far as they relate to the recovery of tax, shall also apply in relation to bodies from time to time established by or under any enactment for the carrying on of any industry or part of an industry, or of any undertaking, under national ownership or control as if –
(i)such bodies were companies within the meaning of those sections,
(ii)any such bodies charged with related functions and subsidiaries of any of them formed a group, and
(iii)any 2 or more such bodies charged at different times with the same or related functions were members of a group.
(b)Paragraph (a) shall apply subject to any enactment by virtue of which property, rights, liabilities or activities of one such body mentioned in that paragraph are to be treated for corporation tax as those of another such body.
(6)For the purposes of this Part –
(a)section 557 and all other provisions for apportioning on a part disposal expenditure which is deductible in computing a gain shall be operated before the operation of and without regard to –
(i)section 617(1), and
(ii)any other enactment making an adjustment to secure that neither a gain nor a loss occurs on a disposal;
(b)section 589 shall not apply where the transfer is a disposal to which section 617(1) applies.
(7)For the purposes of this Part –
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993;
“EEA State” means a state which is a contracting party to the EEA Agreement;
“relevant Member State” means –
(a)a Member State of the European Communities, or
(b)not being such a Member State, an EEA State which is a territory with the government of which arrangements having the force of law by virtue of section 826(1) have been made;
617.
Transfers of assets, other than trading stock, within group.
(1)Notwithstanding any provision in the Capital Gains Tax Acts fixing the amount of the consideration deemed to be received on a disposal or given on an acquisition, where –
(a)a member of a group of companies disposes of an asset to another member of the group,
(b)the company making the disposal is resident in the State at the time of the disposal or the asset is a chargeable asset in relation to that company immediately before that time, and
(c)the other company –
(i)is resident in the State at the time of the disposal or the asset is a chargeable asset in relation to that company immediately after that time, and
(ii)is not –
(I)an authorised investment company (within the meaning of Part 24 of the Companies Act 2014) that is an investment undertaking (within the meaning of section 739B),
(II)a Real Estate Investment Trust (within the meaning of section 705A) or a member of a group Real Estate Investment Trust (within the meaning of section 705A), or
(III)an authorised ICAV (within the meaning of section 2 of the Irish Collective Asset-management Vehicles Act 2015 (No. 2 of 2015)),
both members shall, except where provided by subsections (2), (3) and (4), be treated, in so far as relates to corporation tax on chargeable gains, as if the asset acquired by the member to whom the disposal is made were acquired for a consideration of such amount as would secure that on the other member’s disposal neither a gain nor a loss would accure to that other member; but, where it is assumed for any purpose that a member of a group of companies has sold or acquired an asset, it shall be assumed also that it was not a sale to or acquisition from another member of the group.
(2)Subsection (1) shall not apply where the disposal is –
(a)a disposal of a debt from a member of a group of companies effected by satisfying the debt or part of it, or
(b)a disposal of redeemable shares in a company on the occasion of their redemption,
and the reference in that subsection to a member of a group of companies disposing of an asset shall not apply to anything which under section 583 is to be treated as a disposal of an interest in shares in a company in consideration for a capital distribution (within the meaning of that section) from that company, whether or not involving a reduction of capital.
(3)For the purposes of subsection (1), in so far as the consideration for the disposal consists of money or money’s worth by means of compensation for any kind of damage or injury to assets, or for the destruction or dissipation of assets or for anything which depreciates or might depreciate an asset, the disposal shall be treated as being to the person who, whether as an insurer or otherwise, ultimately bears the burden of furnishing that consideration.
(4)Where a member of a group of companies disposes of a specified intangible asset within the meaning of section 291A to another member of the group, subsection (1) shall not apply to the disposal of that asset where the companies jointly so elect by giving notice, not later than 12 months from the end of the accounting period in which the other member of the group acquired the asset, to the Collector-General in such manner as the Revenue Commissioners may require.
(5)For the purposes of this section, a ‘group of companies’ shall include only companies which, by virtue of the law of a relevant Member State or other territory with the government of which arrangements having the force of law by virtue of section 826(1) have been made, are resident for the purposes of tax in such Member State or territory, as the case may be, and for this purpose ‘tax’, in relation to a relevant Member State or such territory, other than the State, means any tax imposed in the Member State or territory which corresponds to corporation tax in the State.
617A.
Transfers arising from certain mergers under Companies Act 2014.
The transfer of all the assets and liabilities of a company which is a wholly owned subsidiary of another company (in this section referred to as the ‘parent company’) to the parent company as a consequence of a merger by absorption to which Chapter 3 of Part 9 of, or Chapter 16 of Part 17 of, the Companies Act 2014 applies shall not be treated as involving a disposal by the parent company of the share capital which it held in the subsidiary company immediately before the merger.
618.
Transfers of trading stock within group.
(1)Where –
(a)a company which is a member of a group of companies acquires an asset as trading stock of a trade to which this section applies,
(b)the acquisition is from another company which is a member of the group, and
(c)the asset did not form part of the trading stock of any such trade carried on by the other company,
the company acquiring the asset shall be treated for the purposes of section 596 as having acquired the asset otherwise than as trading stock and immediately appropriated it for the purposes of the trade as trading stock.
(2)Where a member of a group of companies disposes of an asset to another member of the group and the asset to which this section applies carried on by the member disposing of the asset but is acquired by the other member otherwise than as trading stock of a trade carried on by that other member, the member disposing of the asset shall be treated for the purposes of section 596 as having immediately before the disposal appropriated the asset for some purpose other than the purpose of use as trading stock.
(3)This section applies to –
(a)a trade carried on by a company which is resident in the State, and
(b)a trade carried on in the State through a branch or agency by a company which is not so resident.
619.
Disposals or acquisitions outside group.
(1)Where a company which is or has been a member of a group of companies disposes of an asset which it acquired from another member of the group in the course of a disposal to which section 617 applies, section 555 shall apply in relation to any capital allowances made to the other member (in so far as not taken into account in relation to a disposal of the asset by that other member), and so on as respects previous transfers of the asset between members of the group, but this shall not be taken as affecting the consideration for which an asset is deemed under section 617(1) to be acquired.
(2)
(a)Section 556 shall apply in relation to a disposal of an asset by a company which is or has been a member of a group of companies, and which acquired the asset from another member of the group in the course of a disposal to which section 617 applies, as if all members of the group for the time being were the same person, and as if the acquisition or provision of the asset by the group, so taken as a single person, had been the acquisition or provision of the asset by the member disposing of the asset.
(b)Notwithstanding paragraph (a), where at any time after the asset was acquired or provided by the group so taken as a single person and before the 24th day of April, 1992, there was an acquisition (in this paragraph referred to as “the later acquisition”) of the asset by a member of the group from another member of the group as a result of a relevant disposal (within the meaning of section 648), this subsection shall apply as if the reference in paragraph (a) to the acquisition or provision of the asset by the group were a reference to the later acquisition or, where there was more than one, the last such acquisition.
620.
Replacement of business assets by members of group.
(1)For the purposes of this section ‘old assets’ and ‘new assets’ have the same meanings as in section 597.
(2)Subject to subsection (4), for the purposes of section 597 all the trades to which this section applies carried on by members of a group of companies shall be treated as a single trade (except in a case of one member of the group acquiring, or acquiring the interest in, the new assets from another member or disposing of, or disposing of the interest in, the old assets to another member).
(3)This section applies to –
(a)any trade carried on by a company which is resident in the State, and
(b)any trade carried on in the State through a branch or agency of a company which is not so resident.
(4)This section shall not apply unless –
(a)the company disposing of the old assets is resident in the State at the time of the disposal, or the assets are chargeable assets in relation to that company immediately before that time, and
(b)the company acquiring the new assets is resident in the State at the time of acquisition, or the assets are chargeable assets in relation to that company immediately after that time.
620A.
Deemed disposal in certain circumstances.
(1)This section applies in relation to a company where –
(a)at any time on or after 15 February 2001 an asset ceases to be a chargeable asset in relation to the company –
(i)where at the time of the acquisition of the asset by the company the asset consisted of shares deriving their value or the greater part of their value from assets specified in paragraph (a) or (b) of section 29(3), by virtue of the assets ceasing to so derive their value or the greater part of their value, or
(ii)by virtue of the asset becoming situated outside the State,
and
(b)
(i)the company acquired the asset in the course of –
(I)a transfer to which section 615 applies, or
(II)a disposal to which section 617 applies,
or
(ii)by virtue of section 620 the asset constitutes new assets for the purposes of section 597.
(2)Where this section applies in relation to a company, the company shall be deemed for the purposes of the Capital Gains Tax Acts and the Corporation Tax Acts –
(a)to have disposed of the asset immediately before the time when it ceased to be a chargeable asset in relation to the company, and
(b)immediately to have reacquired it,
at its market value at that time.
621.
Depreciatory transactions in group.
(1)For the purposes of this section –
“securities” includes any loan stock or similar security whether secured or unsecured;
references to the disposal of assets include references to any method by which one company which is a member of a group appropriates the goodwill of another member of the group;
‘a group of companies’ may consist of companies some or all of which are not resident for the purposes of tax in a relevant Member State.
(2)References in this section to the disposal of shares or securities include references to the occasion of the making of a claim under section 538(2) that the value of shares or securities has become negligible, and references to a person making a disposal shall be construed accordingly.
(3)This section shall apply as respects a disposal of shares in or securities of a company (in this section referred to as an “ultimate disposal”) if the value of the shares or securities has been materially reduced by a depreciatory transaction effected on or after the 6th day of April, 1974, and for this purpose “depreciatory transaction” means –
(a)any disposal of assets at other than market value by one member of a group of companies to another, or
(b)any other transaction satisfying the conditions of subsection (4);
but a transaction shall not be treated as a depreciatory transaction to the extent that it consists of a payment which is required to be or has been taken into account, for the purposes of corporation tax on chargeable gains, in computing a chargeable gain or allowable loss accruing to the person making the ultimate disposal.
(4)The conditions referred to in subsection (3)(b) are –
(a)that the company, the shares in which or securities of which are the subject of the ultimate disposal, or any effective 75 per cent subsidiary of that company, was a party to the transaction, and
(b)that the parties to the transaction were or included 2 or more companies which at the time of the transaction were members of the same group of companies.
(5)Without prejudice to the generality of subsection (3), the cancellation of any shares in or securities of one member of a group of companies under section 72 of the Companies Act, 1963, shall, to the extent that immediately before the cancellation those shares or securities were the property of another member of the group, be taken to be a transaction fulfilling the conditions in subsection (4).
(6)A person making an ultimate disposal who is or has at any time been a member of the group of companies referred to in subsection (3) or (4) shall, for the purposes of making a self-assessment, reduce any loss on the disposal to such an extent that the loss does not reflect any diminution in the value of the company’s assets attributable to a depreciatory transaction; but, if the person making the ultimate disposal is not a member of that group when disposing of the shares or securities, no reduction of the loss shall be made by reference to a depreciatory transaction that took place when that person was not a member of that group.
(7)
(a)Subject to paragraph (b), the inspector, in making an assessment, or the Appeal Commissioners, on an appeal against an assessment, shall reduce any allowable loss to such extent as appears to the inspector or the Appeal Commissioners to be just and reasonable on the basis that the loss ought not to reflect any diminution in the value of the company’s assets attributable to a depreciatory transaction.
(b)Allowance may be made for any transaction, other than a depreciatory transaction, on or after 6 April 1974 that has enhanced the value of the company’s assets and depreciated the value of the assets of any other member of the group.
(8)
(a)Where, under subsection (6), a reduction is made in a loss, any chargeable gain accruing on a disposal of the shares in or securities of any other company which was a party to the depreciatory transaction by reference to which the reduction was made, being a disposal not later than 10 years after the depreciatory transaction, shall, for the purposes of the making of a self-assessment, be reduced to such an extent that the gain does not reflect any increase in the value of the company’s assets attributable to the depreciatory transaction on the value of those shares or securities at the time of their disposal.
(aa)The inspector, in making an assessment, or the Appeal Commissioners, on an appeal against an assessment, shall reduce any chargeable gain to such an extent as appears to the inspector or the Appeal Commissioners, as the case may be, to be just and reasonable on the basis that the gain ought not to reflect any increase in the value of the company’s assets attributable to a depreciatory transaction.
(b)Notwithstanding paragraph (a), the total amount of any one or more reductions in chargeable gains made by reference to a depreciatory transaction shall not exceed the amount of the reductions in allowable losses made by reference to that depreciatory transaction.
(c)All such adjustments, whether by means of discharge or repayment of tax or otherwise, as are required to give effect to this subsection may be made at any time.
622.
Dividend stripping.
(1)This section shall apply where one company (in this section referred to as “the first company”) has a holding in another company (in this section referred to as “the second company”) and the following conditions are fulfilled –
(a)that the holding amounts to, or is an ingredient in a holding amounting to, 10 per cent of all holdings of the same class in the second company,
(b)that the first company is not a dealing company in relation to the holding,
(c)that a distribution is or has been made on or after the 6th day of April, 1974, to the first company in respect of the holding, and
(d)that the effect of the distribution is that the value of the holding is or has been materially reduced.
(2)
(a)Where this section applies in relation to a holding, section 621 shall apply in relation to any disposal of any shares or securities comprised in the holding, whether the disposal is by the first company or by any other company to which the holding is transferred by a transfer to which section 617 applies, as if the distribution were a depreciatory transaction and, if the companies concerned are not members of a group of companies, as if they were.
(b)Notwithstanding paragraph (a), the distribution shall not be treated as a depreciatory transaction to the extent that it consists of a payment which is required to be or has been taken into account, for the purposes of corporation tax on chargeable gains, in computing a chargeable gain or allowable loss accruing to the person making the ultimate disposal.
(3)This section shall be construed together with section 621.
(4)For the purposes of this section, a company shall be a dealing company in relation to a holding if a profit on the sale of the holding would be taken into account in computing the company’s trading profits.
(5)References in this section to a holding in a company are references to a holding of shares or securities by virtue of which the holder may receive distributions made by the company, but so that –
(a)a company’s holdings of different classes in another company shall be treated as separate holdings, and
(b)holdings of shares or securities which differ in the entitlements or obligations they confer or impose shall be regarded as holdings of different classes.
(6)For the purposes of subsection (1) –
(a)all a company’s holdings of the same class in another company shall be treated as ingredients constituting a single holding, and
(b)a company’s holding of a particular class shall be treated as an ingredient in a holding amounting to 10 per cent of all holdings of that class if the aggregate of that holding and other holdings of that class held by connected persons amounts to 10 per cent of all holdings of that class.
623.
Company ceasing to be member of group.
(1)For the purposes of this section –
(a)2 or more companies shall be associated companies if by themselves they would form a group of companies;
(b)a chargeable gain shall be deferred on a replacement of business assets if, by one or more claims under section 597, a chargeable gain on the disposal of those assets is treated as not accruing until the new assets within the meaning of that section cease to be used for the purpose of a trade carried on by the company making the claim;
(c)an asset acquired by the chargeable company shall be treated as the same as an asset owned at a later time by that company or an associated company if the value of the second asset is derived in whole or in part from the first asset, and in particular where the second asset is a freehold, and the first asset was a leasehold and the lessee has acquired the reversion;
(d)references to a company ceasing to be a member of a group of companies shall not apply to cases where a company ceases to be a member of a group by being wound up or dissolved or in consequence of another member of the group being wound up or dissolved where the winding up or dissolution of the member or the other member, as the case may be, is for bona fide commercial reasons and is not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
(2)Subject to subsection (2A), this section applies where –
(a)a company (in this section referred to as the ‘chargeable company’) which is a member of a group of companies acquires an asset from another company which at the time of acquisition was a member of the group.
(b)the chargeable company ceases to be a member of the group within the period of 10 years after the time of the acquisition,
(c)the chargeable company is resident in the State at the time of acquisition of the asset, or the asset is a chargeable asset in relation to that company immediately after that time, and
(d)the other company is resident in the State at the time of that acquisition, or the asset is a chargeable asset in relation to that company immediately before that time.
(2A)
(a)This section does not apply to a bank asset where that asset is acquired on or after the establishment day by –
(i)NAMA, or
(ii)a company to which section 616(1)(g) relates from that Agency or a company to which that paragraph relates.
(b)In this subsection ‘bank asset’, ‘establishment day’ and ‘NAMA’ have the same meanings, respectively, as they have in the National Asset Management Agency Act 2009.
(3)
(a)Where 2 or more associated companies (in this subsection referred to as “the associated companies”) cease to be members of a group at the same time –
(i)subsection (2) shall not apply as respects an acquisition by one from another of the associated companies, and
(ii)where –
(I)a dividend has been paid or a distribution has been made by one of the associated companies to a company which is not one of the associated companies, and
(II)the dividend so paid or the distribution so made has been paid or made, as the case may be, wholly or partly out of profits which derive from the disposal of any asset by one to another of the associated companies,
the amount of the dividend paid or the amount or value of the distribution made, to the extent that it is paid or made, as the case may be, out of those profits, shall be deemed for the purposes of the Capital Gains Tax Acts to be consideration (in addition to any other consideration) received by the member of the group or former member of the group in respect of a disposal, being a disposal which gave rise to or was caused by the associated companies ceasing to be members of the group.
(b)Paragraph (a)(ii) shall not apply to a distribution other than a dividend where a company ceases to be a member of a group of companies before the 23rd day of April, 1996.
(4)If when the chargeable company ceases to be a member of the group the chargeable company, or an associated company also leaving the group, owns otherwise than as trading stock –
(a)the asset referred to in subsection (2), or
(b)property on the acquisition of which a chargeable gain in relation to the asset has been deferred on a replacement of business assets,
the chargeable company shall be treated for the purposes of the Capital Gains Tax Acts as if immediately after its acquisition of the asset it had sold and immediately reacquired the asset at market value at that time and, solely for the purpose of determining when such tax is due and payable, as if any tax charged in respect of a chargeable gain that accrued from such a sale and reacquisition were tax for the accounting period of the chargeable company in which it ceases to be a member of the group.
(5)Where any of the corporation tax assessed on a company in consequence of this section is not paid within 6 months from the date when it becomes payable, then –
(a)a company which on that date, or immediately after the chargeable company ceased to be a member of the group, was the principal company of the group, and
(b)a company which owned the asset on that date or when the chargeable company ceased to a member of the group,
may, at any time within 2 years from the time when the tax became payable, be assessed and charged (in the name of the chargeable company) to all or any part of that tax, and a company paying any amount of tax under this subsection shall be entitled to recover a sum of that amount from the chargeable company.
(6)Notwithstanding any limitation on the time for making assessments, an assessment to corporation tax chargeable in consequence of this section may be made at any time within 10 years from the time when the chargeable company ceased to be a member of the group, and where under this section the chargeable company is to be treated as having disposed of and reacquired an asset, all such recomputations of liability in respect of other disposals, and all such adjustments of tax, whether by means of assessment or by means of discharge or repayment of tax, as may be required in consequence of this section shall be made.
(7)For the purposes of this section, a ‘group of companies’ shall include only companies which, by virtue of the law of a relevant Member State or other territory with the government of which arrangements having the force of law by virtue of section 826(1) have been made, are resident for the purposes of tax in such Member State or territory, as the case may be, and for this purpose ‘tax’, in relation to a relevant Member State or such territory, other than the State, means any tax imposed in the Member State or territory which corresponds to corporation tax in the State.
623A.
Transitional provisions in respect of section 623.
(1)In this section ‘the new definition’ means section 616 as amended by section 56 of the Finance Act, 1999, and ‘the old definition’ means that section as it had effect on the 10th day of February, 1999.
(2)Where –
(a)on the 11th day of February, 1999, a company ceases, for the purposes of section 616 and the provisions of this Part subsequent to that section, to be a member of a group by reason only of the substitution for the old definition of the new definition, and
(b)in consequence of ceasing to be such a member the company would, apart from this section, be treated by virtue of section 623(4) as selling an asset at any time,
the company shall not be treated as selling the asset at that time unless the conditions in subsection (3) become satisfied, assuming for that purpose that the old definition applies.
(3)The conditions referred to in subsection (2) are –
(a)that for the purposes of section 623, the company ceases at any time (in this subsection referred to as the ‘relevant time’) to be a member of the group referred to in subsection (2)(a),
(b)that, at the relevant time, the company (or an associated company also ceasing to be a member of that group at that time) owns, otherwise than as trading stock, the asset, or property on the acquisition of which a chargeable gain in relation to the asset has been deferred on a replacement of business assets, and
(c)that the time of acquisition of the asset referred to in section 623(2) fell within the period of 10 years ending with the relevant time.
624.
Exemption from charge under section 623 in case of certain mergers.
(1)Section 623 shall not apply in a case where –
(a)as part of a merger a company (in this section referred to as “company A”) ceases to be a member of a group of companies (in this section referred to as “the A group”), and
(b)it is shown that the merger was carried out for bona fide commercial reasons and that the avoidance of liability to tax was not the main or one of the main purposes of the merger.
(2)In this section, “merger” means an arrangement (including a series of arrangements) –
(a)whereby one or more companies (in this section referred to as “the acquiring company” or, as the case may be, “the acquiring companies”) none of which is a member of the A group acquires or acquire, otherwise than with a view to their disposal, one or more interests in the whole or part of the business which, before the arrangement took effect, was carried on by company A,
(b)whereby one or more members of the A group acquires or acquire, otherwise than with a view to their disposal, one or more interests in the whole or part of the business or each of the businesses which, before the arrangement took effect, was carried on either by the acquiring company or acquiring companies or by a company at least 90 per cent of the ordinary share capital of which was then beneficially owned by 2 or more of the acquiring companies, and
(c)in respect of which the conditions in subsection (4) are fulfilled.
(3)For the purposes of subsection (2), a member of a group of companies shall be treated as carrying on as one business the activities of that group.
(4)The conditions referred to in subsection (2)(c) are –
(a)that not less than 25 per cent by value of each of the interests acquired as mentioned in paragraphs (a) and (b) of subsection (2) consists of a holding of ordinary share capital, and the remainder of the interest or, as the case may be, of each of the interests acquired as mentioned in paragraph (b) of that subsection consists of a holding of share capital (of any description) or debentures or both,
(b)that the value or, as the case may be, the aggregate value of the interest or interests acquired as mentioned in subsection (2)(a) is substantially the same as the value or, as the case may be, the aggregate value of the interest or interests acquired as mentioned in subsection (2)(b), and
(c)that the consideration for the acquisition of the interest or interests acquired by the acquiring company or acquiring companies as mentioned in subsection (2)(a), disregarding any part of that consideration which is small by comparison with the total, either consists of, or is applied in the acquisition of, or consists partly of and as to the balance is applied in the acquisition of, the interest or interests acquired by members of the A group as mentioned in subsection (2)(b),
and for the purposes of this subsection the value of an interest shall be determined as at the date of its acquisition.
(5)Notwithstanding section 616(1)(a), references in this section to a company shall include references to a company which is not resident in a relevant Member State.
625.
Shares in subsidiary member of group.
(1)
(a)This section shall apply if a company (in this section referred to as “the subsidiary”) ceases to be a member of a group of companies, and on an earlier occasion shares in the subsidiary were disposed of by another company (in this section referred to as “the chargeable company”) which was then a member of that group in the course of an amalgamation or reconstruction in the group, but only if that earlier occasion fell within the period of 10 years ending on the date on which the subsidiary ceases to be a member of the group.
(b)References in this section to a company ceasing to be a member of a group of companies shall not apply to cases where a company ceases to be a member of a group by being wound up or dissolved or in consequence of another member of the group being wound up or dissolved.
(2)The chargeable company shall be treated for the purposes of the Capital Gains Tax Acts as if immediately before the earlier occasion it had sold and immediately reacquired the shares referred to in subsection (1)(a) at market value at that time.
(3)Where before the subsidiary ceases to be a member of the group the chargeable company has ceased to exist, or a resolution has been passed, or an order made, for the winding up of the company, or any other act has been done for the like purpose, any corporation tax to which, if the chargeable company had continued in existence, it would have been chargeable in consequence of this section may be assessed and charged (in the name of the chargeable company) on the company which is, at the time when the subsidiary ceases to be a member of the group, the principal company of the group.
(4)Where any of the corporation tax assessed on a company in consequence of this section, or in pursuance of subsection (3), is not paid within 6 months from the date when it becomes payable, then –
(a)a company which is on that date, or was on the earlier occasion, the principal company of the group, and
(b)any company taking an interest in the subsidiary as part of the amalgamation or reconstruction in the group, may at any time within 2 years from the time when the tax became payable, be assessed and charged (in the name of the chargeable company) to all or any part of that tax, and a company paying any amount of tax under this subsection shall be entitled to recover a sum of that amount from the chargeable company or, as the case may be, from the company assessed under subsection (3).
(5)Notwithstanding any limitation on the time for making assessments, an assessment to corporation tax chargeable in consequence of this section may be made at any time within 10 years from the time when the subsidiary ceased to be a member of the group and, in relation to any disposal of the property after the earlier occasion, there shall be made all such adjustments of tax, whether by means of assessment or by means of discharge or repayment of tax, as may be required in consequence of this section.
(6)For the purposes of this section, there shall be a disposal of shares in the course of an amalgamation or reconstruction in a group of companies if –
(a)section 586 or 587 applies to shares in a company so as to equate them with shares in or debentures of another company, and
(b)the companies are members of the same group, or become members of the same group as a result of the amalgamation or reconstruction.
(7)Where by virtue of section 587 shares are to be treated as cancelled o r extinguished as a result of a merger or division within the meaning of section 638A (inserted by the Finance Act 2017) and replaced by a new issue, references in this section to a disposal of shares include references to the occasion of the shares being so treated.
625A.
Transitional provisions in respect of section 625.
(1)In this section –
‘the subsidiary’ and ‘the chargeable company’ have the same meanings, respectively, assigned to them by 625(1);
‘the new definition’ means section 616 as amended by section 56 of the Finance Act, 1999, and ‘the old definition’ means that section as it had effect on the 10th day of February, 1999.
(2)Where –
(a)on the 11th day of February, 1999, the subsidiary company ceases, for the purposes of section 616 and the provisions of this Part subsequent to that section, to be a member of a group by reason only of the substitution for the old definition of the new definition, and
(b)in consequence of ceasing to be such a member the chargeable company would, apart from this section, be treated by virtue of section 625(2) as selling shares in the subsidiary at any time,
the chargeable company shall not be treated as selling the shares at that time unless the conditions in subsection (3) become satisfied assuming for that purpose that the old definition applies.
(3)The conditions referred to in subsection (2) are –
(a)that for the purposes of section 625 the subsidiary ceases at any time (in this subsection referred to as ‘the relevant time’) to be a member of the group referred to in subsection (2)(a), and
(b)that the time of the earlier occasion referred to in section 625(1)(a) fell within the period of 10 years ending with the relevant time.
626.
Tax on company recoverable from other members of group.
(1)Where at any time a chargeable gain accrues to a company which at that time is a member of a group of companies and any of the corporation tax assessed on the company for the accounting period in which the chargeable gain accrues is not paid within 6 months from the date when it becomes payable by the company, then, if the tax so assessed included any amount in respect of chargeable gains –
(a)a company which at the time when the gain accrued was the principal company of the group, and
(b)any other company which in any part of the period of 2 years ending with that time was a member of that group of companies and owned the asset disposed of or any part of it or, where the asset is an interest or right in or over another asset, owned either asset or any part of either asset,
may at any time within 2 years from the time when the tax became payable be assessed and charged (in the name of the company to whom the chargeable gain accrued) to an amount of that corporation tax not exceeding corporation tax on the amount and at the rate charged in respect of that gain in the assessment on the company to which the chargeable gain accrued.
(2)A company paying any amount of tax under subsection (1) shall be entitled to recover a sum of that amount –
(a)from the company to which the chargeable gain accrued, or
(b)if that company is not the company which was the principal company of the group at the time when the chargeable gain accrued, from that principal company,
and a company paying any amount under paragraph (b) shall be entitled to recover a sum of that amount from the company to which the chargeable gain accrued and, in so far as it is not so recovered, to recover from any company which is for the time being a member of the group and which has while a member of the group owned the asset disposed of or any part of that asset (or, where that asset is an interest or right in or over another asset, owned either asset or any part of either asset) such proportion of the amount unrecovered as is just having regard to the value of the asset at the time when the asset, or an interest or right in or over that asset, was disposed of by that company.
626A.
Restriction on set-off of pre-entry losses.
For the purposes of Part 20, Schedule 18A (which makes provision in relation to losses accruing to a company before the time when it becomes a member of a group of companies and losses accruing on assets held by any company at such a time) shall apply.
626B.
Exemption from tax in the case of gains on certain disposals of shares.
(1)
(a)In this section, section 626C and Schedule 25A –
“investor company” and “investee company” have the meanings assigned by subsection (2);
“relevant territory” means –
(i)a Member State of the European Communities
(ii)not being such a Member State, a territory with the government of which arrangements having the force of law by virtue of section 826(1) have been made, or
(iii)not being a territory referred to in subparagraph (i) or (ii), a territory with the government of which arrangements have been made which on completion of the procedures set out in section 826(1) will have the force of law;
“tax” in relation to a relevant territory other than the State means any tax imposed in that territory which corresponds to income tax or corporation tax in the State;
“2 year period” means a period ending on the day before the second anniversary of the day on which the period began.
(b)For the purposes of this section, section 626C and Schedule 25A –
(i)a company shall only be a parent company in relation to another company at any time if that time falls within an uninterrupted period of not less than 12 months throughout which it directly or indirectly holds shares in that company by virtue of which –
(I)it holds not less than 5 per cent of the company’s ordinary share capital,
(II)it is beneficially entitled to not less than 5 per cent of the profits available for distribution to equity holders of the company, and
(III)it would be beneficially entitled on a winding up to not less than 5 per cent of the assets of the company available for distribution to equity holders,
and for the purposes of this subparagraph –
(A)subsections (2) to (10) of section 9 shall apply with any necessary modifications, and
(B)sections 413 to 419 shall apply as they apply for the purposes of Chapter 5 of Part 12 but as if ‘in a relevant territory’ were substituted for ‘in the State’ in subparagraph (iii) of section 413(3)(a) and as if paragraph (c) of section 411(1), other than that paragraph as it applies by virtue of clauses (I) and (II) of subparagraph (i), were disregarded,
(ii)in determining whether the conditions in paragraph (a) of subsection (2) are satisfied, a company that is a member of a group shall be treated as holding so much of any shares held by any other company in the group and as having so much of the entitlement of any such company to any rights enjoyed by virtue of holding shares –
(I)as the company would not, apart from this paragraph, hold or have, and
(II)as are not part of a life business fund within the meaning of section 719,
and, for the purposes of this subparagraph, ‘group’ means a company which has one or more 51 per cent subsidiaries together with those subsidiaries,
(iii)in determining whether the treatment provided for in subsection (2) applies, the question of whether there is a disposal shall be determined without regard to section 584 or that section as applied by any other section: and, to the extent to which an exemption under subsection (2) does apply in relation to a disposal, section 584 shall not apply in relation to the disposal,
(iv)where assets of a company are vested in a liquidator under section 614 of the Companies Act 2014 or otherwise, the assets shall be deemed to be vested in, and the acts of liquidation in relation to the assets shall be deemed to be the acts of, the company (and acquisitions from, and disposals to, the liquidator shall be disregarded accordingly),
(v)section 616 shall not apply.
(2)A gain accruing to a company (in this section referred to as the ‘investor company’) on a disposal of shares in another company (in this section referred to as the ‘investee company’) is not a chargeable gain if –
(a)the disposal by the investor company is at a time –
(i)when the investor company is a parent company of the investee company, or
(ii)within the 2 year period beginning on the most recent day on which the investor company was a parent company of the investee company,
(b)the investee company is, by virtue of the law of a relevant territory, resident for the purposes of tax in the relevant territory at the time of the disposal, and
(c)at the time of the disposal –
(i)the investee company is a company whose business consists wholly or mainly of the carrying on of a trade or trades, or
(ii)the business of –
(I)the investor company,
(II)each company of which the investor company is the parent company, and
(III)the investee company, if it is not a company referred to in clause (II), and any company of which the investee company is the parent company,
taken together consists wholly or mainly of the carrying on of a trade or trades.
(3)The treatment of a gain, as not being a chargeable gain, provided by this section and section 626C shall not apply –
(a)to a disposal that by virtue of any provision relating to chargeable gains is deemed to be for a consideration such that no gain or loss accrues to the person making the disposal,
(b)to a disposal a gain on which would, by virtue of any provision other than this section or section 626C, not be a chargeable gain,
(c)to disposals, including deemed disposals, of shares which are part of a life business fund within the meaning of section 719,
(d)to a disposal of shares deriving their value or the greater part of this value directly or indirectly from assets specified in paragraphs (a) and (b) of subsection (3) of section 29 and subsection (6) of that section,
(e)to deemed disposals under section 627.
(3A)
(a)In this subsection ‘relevant treatment of a gain’ means the treatment, provided by this section or section 626C, of a gain as not being a chargeable gain.
(b)Notwithstanding any provision of section 590, the relevant treatment of a gain shall not apply for the purposes of section 590, but this is subject to paragraph (c).
(c)The relevant treatment of a gain shall apply for the purposes of section 590 where the participator (within the meaning of that section) is a company.
(3B)
(a)In this subsection –
‘arrangement’ includes any agreement, understanding, scheme, transaction or series of transactions;
‘relevant assets’ means the assets specified in subsection (3)(d).
(b)In calculating the portion of the value of shares attributable directly or indirectly to relevant assets, account shall not be taken of any arrangement that –
(i)involves a transfer of money or other assets (apart from relevant assets) from a person connected with the company in which those shares are held,
(ii)is made before a disposal of relevant assets, and
(iii)the main purpose or one of the main purposes of which is the avoidance of tax.
(4)Schedule 25A shall have effect for the purposes of supplementing this section and section 626C.
626C.
Treatment of assets related to shares.
(1)For the purposes of this section –
(a)an asset is related to shares in a company if it is –
(i)an option to acquire or dispose of shares in that company,
(ii)a security to which are attached rights by virtue of which the holder is or may become entitled, whether by conversion or exchange or otherwise, to acquire or dispose of –
(I)shares in that company,
(II)an option to acquire or dispose of shares in that company, or
(III)another security falling within this paragraph,
or
(iii)an option to acquire or dispose of any security within subparagraph (ii) or an interest in any such security,
(b)in determining whether a security is within paragraph (a)(ii), no account shall be taken –
(i)of any rights attached to the security other than rights relating, directly or indirectly, to shares of the company in question, or
(ii)of rights as regards which, at the time the security came into existence, there was no more than a negligible likelihood that they would in due course be exercised to a significant extent.
(2)A gain accruing to a company (in this subsection referred to as the ‘first-mentioned company’) on the disposal of an asset related to shares in another company is not a chargeable gain if –
(a)
(i)immediately before the disposal the first-mentioned company holds shares in the other company, and
(ii)any gain accruing to the first-mentioned company on a disposal at that time of the shares would, by virtue of section 626B, not be a chargeable gain,
or
(b)
(i)immediately before the disposal the first-mentioned company does not hold shares in the other company but is a member of a group and another member of that group does hold shares in the other company, and
(ii)if the first-mentioned company, rather than the other member of the group, held the shares, any gain accruing to the first-mentioned company on a disposal at that time of the shares would, by virtue of section 626B, not be a chargeable gain;
and for the purposes of this paragraph ‘group’ means a company which has one or more 51 per cent subsidiaries together with those subsidiaries.