Leases
STAMP DUTIES CONSOLIDATION ACT
Chapter 4 Leases (ss. 50-56)
50.
Agreements for not more than 35 years charged as leases.
An agreement for a lease or with respect to the letting of any lands, tenements, or heritable subjects for any term not exceeding 35 years, or for any indefinite term, shall be charged with the same duty as if it were an actual lease made for the term and consideration mentioned in the agreement.
50A.
Agreements for more than 35 years charged as leases.
(1)An agreement for a lease or with respect to the letting of any lands, tenements, or heritable subjects for any term exceeding 35 years, shall be charged with the same stamp duty as if it were an actual lease made for the term and consideration mentioned in the agreement where 25 per cent or more of that consideration has been paid.
(2)The stamp duty paid on any agreement for a lease, in accordance with subsection (1), shall, on an application to the Commissioners and subject to section 159A, be repaid by the Commissioners where it is shown to the satisfaction of the Commissioners that the agreement for a lease has been rescinded or annulled.
51.
Leases how to be charged in respect of produce, etc.
(1)Where the consideration, or any part of the consideration, for which a lease is granted or agreed to be granted, consists of any produce or other goods, the value of the produce or goods shall be deemed a consideration in respect of which the lease or agreement is chargeable with ad valorem duty.
(2)Where it is stipulated that the value of the produce or goods is to amount at least to, or is not to exceed, a given sum, or where the lessee is specially charged with, or has the option of paying after any permanent rate of conversion, the value of the produce or goods shall, for the purpose of assessing the ad valorem duty, be estimated at the given sum, or according to the permanent rate.
(3)If a lease or agreement for a lease made either wholly or partially for any consideration to which subsection (1) relates –
(a)contains a statement of the value of such consideration, and
(b)is stamped in accordance with the statement,
it shall, in respect of the subject matter of the statement, be deemed duly stamped, unless or until it is otherwise shown that the statement is incorrect, and that the lease or agreement is in fact not duly stamped.
52.
Charging of duty on leases, etc.
(1)A lease, or agreement for a lease, or with respect to any letting, shall not be charged with any duty in respect of any penal rent, or increased rent in the nature of a penal rent, thereby reserved or agreed to be reserved or made payable, or by reason of being made in consideration of the surrender or abandonment of any existing lease, or agreement, of or relating to the same subject matter.
(2)A lease made for any consideration in respect of which it is chargeable with ad valorem duty, and in further consideration either of a covenant by the lessee to make, or of such lessee having previously made, any substantial improvement of or addition to the property demised to such lessee, or of any covenant relating to the matter of the lease, shall not be charged with any duty in respect of such further consideration.
(3)Subsection (2) shall not apply as respects any further consideration in the lease consisting of a covenant which if it were contained in a separate deed would be chargeable with ad valorem stamp duty and, accordingly, the lease shall in any such case be charged with duty in respect of any such further consideration under section 7.
(4)An instrument whereby the rent reserved by any other instrument chargeable with duty and duly stamped as a lease is increased shall not be charged with duty otherwise than as a lease in consideration of the additional rent thereby made payable.
(5)Where –
(a)any property which consists partly of an interest in residential property is leased to any person and that lease (in this subsection referred to as “the first-mentioned lease”) does not form part of a larger transaction or of a series of transactions, or
(b)the lease to any person of property consisting in whole or in part of such an interest forms part of a larger transaction or of a series of transactions,
then the consideration (other than rent) attributable to the first-mentioned lease and the aggregate consideration (other than rent) attributable to that larger transaction or series of transactions, as the case may be, shall be apportioned, on such basis as is just and reasonable, as between that interest in residential property and the other property or part concerned, and that aggregate consideration shall likewise be apportioned as between each other such interest (if any) comprised in that larger transaction or series of transactions and the other property or parts concerned, and notwithstanding the amount or value of the consideration set forth in any instrument –
(i)the consideration so apportioned to that interest shall be deemed to be the amount or the value of the consideration for the lease which is attributable to that interest and the consideration so apportioned to the aggregate of all such interests comprised in that larger transaction or series of transactions shall be deemed to be the amount or value of that aggregate consideration which is attributable to residential property, and
(ii)the consideration so apportioned to the other property or part or parts concerned shall be deemed to be the amount or value of the consideration for the lease, or of that aggregate consideration, as the case may be, which is attributable to property which is not residential property.
53.
Lease combined with building agreement for dwellinghouse or apartment.
(1)
(a)In this section –
“building” includes any improvement of any land, and any alteration to the character of any land, preliminary to the erection on that land of a dwellinghouse or apartment;
“land” includes any interest in any land but does not include the result of any act of building.
(b)For the purposes of this section, references to the repayment of stamp duty to a person who paid it include reference to any other person who satisfies the Commissioners that such person is entitled to recover moneys owing to the person.
(2)Notwithstanding subsection (2) of section 52, where, in connection with, or as part of any arrangement involving, a lease of any land, a dwellinghouse or apartment has been built, or is in the course of being built, or is to be built, on that land, any instrument whereby such lease is effected shall be chargeable to stamp duty under subparagraph (a) of paragraph (3) of the heading “LEASE” in Schedule 1, as if the property concerned were residential property on an amount equal to the aggregate of –
(a)any consideration (other than rent) paid in respect of the lease of that land, and
(b)any consideration paid, or to be paid, in respect of the building of the dwellinghouse or apartment on that land.
(3)Without prejudice to the generality of subsection (2), a dwellinghouse or apartment shall be regarded as having been built or being in the course of being built or to be built in connection with, or as part of any arrangement involving, a lease of any land where building has commenced prior to the execution of any instrument effecting the lease.
(4)
(a)Where in the case of any instrument of lease to which this section applies, the aggregate consideration to which subsection (2) relates cannot be ascertained at the date on which the instrument is presented for stamping, then the instrument shall be chargeable to stamp duty as if the amount of the aggregate consideration which is chargeable under subsection (2) was equal to 10 times the unencumbered open market value of the land at the date of the instrument of lease.
(b)Where it is shown to the satisfaction of the Commissioners that the amount of the stamp duty paid under this subsection exceeded the stamp duty with which the instrument would have been charged under subsection (2) had the aggregate consideration paid or to be paid in respect of the dwellinghouse or apartment been ascertainable at the date of stamping of the instrument, then the amount of such excess stamp duty shall, on an application to the Commissioners within 3 years after the date of stamping of the instrument, and subject to section 159A, be repaid to the person or persons by whom the stamp duty was paid and such repayment shall bear interest calculated in accordance with section 159B for each day or part of a day from the date of payment of the excess duty up until the date of such repayment and income tax shall not be deductible on payment of interest under this subsection and such interest shall not be reckoned in computing income for the purposes of the Tax Acts.
(5)For the purpose of determining whether this section shall apply to any instrument, the Commissioners may require the delivery to them, in such form as they may specify, of a statement or a statutory declaration by –
(a)any person directly or indirectly concerned with the lease of the land or with the building of a dwellinghouse of apartment on the land, and
(b)any solicitor acting on behalf of any person to whom paragraph (a) relates,
of any facts which the Commissioners consider relevant in making any such determination.
(6)[deleted]
(7)Where stamp duty has been charged on any instrument by reference to this section and, within 2 years after the date of stamping of the instrument, building has not commenced, then this section shall be deemed not to have applied to the instrument and, accordingly, the Commissioners shall, on application to them within 3 years after the date of stamping of the instrument by the person or persons by whom the stamp duty was paid, and subject to section 159A, repay to such person or persons the amount of the stamp duty paid by such person or persons which, but for the other provisions of this section, would not have been chargeable and such repayment shall bear interest calculated in accordance with section 159B for each day or part of a day from the date of payment of the excess duty up until the date of such repayment and income tax shall not be deductible on payment of interest under this subsection and such interest shall not be reckoned in computing income for the purposes of the Tax Acts.
(8)Every regulation made under this section shall be laid before Dáil Éireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by Dáil Éireann within the next 21 days on which Dáil Éireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under that regulation.
54.
Leases deemed to operate as voluntary dispositions inter vivos.
(1)Any lease, not being executed in good faith and for valuable consideration, shall for the purposes of this section, be deemed to be a lease operating as a voluntary disposition inter vivos, and the consideration for any lease shall not, for this purpose, be deemed to be valuable consideration where the Commissioners are of opinion that, by reason of the inadequacy of consideration or other circumstances, the lease confers a substantial benefit on the lessee.
(2)Where by operation of this section any lease is deemed to operate as a voluntary disposition inter vivos the reference to consideration (other than rent) in the heading “LEASE” in Schedule 1 shall be construed in relation to duty chargeable on such lease as a reference to the minimum amount or value that would be necessary in order that the lease, any rent under the lease remaining unchanged, would not be a lease operating as a voluntary disposition inter vivos.
(3)[deleted]
55.
Procedure to apply where consideration, etc., cannot be ascertained.
(1)Where the average annual rent or consideration other than rent for a lease cannot be ascertained at the date of execution of a lease and such consideration or rent would, if ascertainable, be chargeable with ad valorem duty in respect of such lease, then stamp duty shall be charged on such lease based on the amount or value of the consideration or rent that could be obtained from a tenant paying full consideration or rent for such lease.
(2)Where, in the case of a lease to which subsection (1) would apply but for the fact that both the rent and the consideration other than rent payable cannot be ascertained, then stamp duty shall be charged on such lease based on the amount or value of the consideration other than rent that could be obtained from a tenant paying full consideration for such lease if the rent reserved in the lease was a nil amount.
(3)This section shall not apply to any instrument in relation to which subsection (4) (a) of section 53 applies.
56.
Stamp duty and value-added tax.
The consideration or rent chargeable under the heading “LEASE” in Schedule 1 shall exclude any value-added tax chargeable under section 3 of the Value-Added Tax Consolidation Act 2010, on such lease.
Chapter 5 Mortgages, etc. (ss. 57-58)
57.
Charging of duty on mortgages, etc. Deleted from 7 December 2006
(1)A security for the transfer or retransfer of any stock shall be charged with the same duty as a similar security for a sum of money equal in amount to the value of the stock, and a transfer, assignment, disposition, or assignation of any such security shall be charged with the same duty as an instrument of the same description relating to a sum of money equal in amount to the value of the stock.
(2)A security for the payment of any rentcharge, annuity, or periodical payments, by means of repayment, or in satisfaction or discharge of any loan, advance, or payment intended to be so repaid, satisfied, or discharged, shall be charged with the same duty as a similar security for the payment of the sum of money so lent, advanced, or paid.
(3)A transfer of a duly stamped security, and a security by means of further charge for money or stock, added to money or stock previously secured by a duly stamped instrument, shall not be charged with any duty by reason of its containing any further or additional security for the money or stock transferred or previously secured, or the interest or dividends of that money or stock, or any new covenant, proviso, power, stipulation, or agreement in relation to that security, or any further assurance of the property comprised in the transferred or previous security.
(4)An instrument chargeable with ad valorem duty as a mortgage shall not be charged with any further duty by reason of the equity of redemption in the mortgaged property being thereby conveyed or limited in any other manner than to a purchaser, or in trust for, or according to the direction of, a purchaser.
58. Security for future advances, how to be charged.
Deleted from 7 December 2006
(1)A security for the payment or repayment of money to be lent, advanced, or paid, or which may become due on an account current, either with or without money previously due, shall be charged, where the total amount secured or to be ultimately recoverable is in any way limited, with the same duty as a security for the amount so limited.
(2)Where such total amount is unlimited, the security shall –
(a)if unstamped, or if stamped with ad valorem duty to cover an amount not exceeding €254,000, be available only for €254,000, and
(b)if stamped with ad valorem duty to cover an amount exceeding €254,000, be available for such amount only,
but where any advance or loan is made in excess of €254,000 or such greater amount as may be covered by that duty, the security shall, for the purpose of stamp duty, be deemed to be a new and separate instrument, executed on the day on which the advance or loan is made.
(3)Notwithstanding subsections (1) and (2), no money to be advanced for the insurance of any property comprised in the security against damage by fire, or for keeping up any policy of life insurance comprised in the security, or for effecting in lieu of the policy of life insurance comprised in the security any new policy, or for the renewal of any grant or lease of any property comprised in the security on the dropping of any life on which the property is held, shall be reckoned as forming part of the amount in respect of which the security is chargeable with ad valorem duty.
Chapter 9
Surrenders of any property, or of any right or interest in any property (s. 67)
67.
Surrender and merger of leasehold interests.
An instrument bearing witness to, or acknowledging –
(a)the surrender, by parol or otherwise, of a leasehold interest in immovable property, or
(b)the merger of such an interest in a superior interest,
shall be charged to the same stamp duty as if it were a surrender of that leasehold interest.