Reorganisations
STAMP DUTIES CONSOLIDATION ACT
Part 7
Exemptions and Reliefs from Stamp Duty
(ss. 79-113)
Chapter 1 Instruments which must be presented to the Commissioners for adjudication in order to obtain exemption or relief (ss. 79-83F)
79.
Conveyances and transfers of property between certain bodies corporate.
(1)Stamp duty shall not be chargeable under or by reference to the following headings in Schedule 1 –
(a)”Conveyance or Transfer on sale of any stocks or marketable securities”,
(b)”Conveyance or Transfer on sale of a policy of insurance or a policy of life insurance where the risk to which the policy relates is located in the State”, or
(c)”Conveyance or Transfer on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance”,
on any instrument to which this section applies.
(2)[deleted]
(3)This section applies to any instrument as respects which the effect of the instrument was to convey or transfer a beneficial interest in property from one body corporate to another, and that at the time of the execution of the instrument the bodies in question were associated, that is, one was the beneficial owner of not less than 90 per cent of the ordinary share capital of the other, or a third such body was the beneficial owner of not less than 90 per cent of the ordinary share capital of each and that this ownership was ownership either directly or through another body corporate or other bodies corporate, or partly directly and partly through another body corporate or other bodies corporate, and subsections (5) to (10) of section 9 of the Taxes Consolidation Act, 1997, shall apply for the purposes of this section as if –
(a)references to company were references to body corporate, and
(b)references to companies were references to bodies corporate.
(3A)For the purposes of subsection (3) “ordinary share capital”, in relation to a body corporate, means all the issued share capital (by whatever name called) of the body corporate, other than capital the holders of which have a right to a dividend at a fixed rate, but have no other right to share in the profits of the body corporate.
(4)Notwithstanding that at the time of execution of any instrument the bodies corporate between which the beneficial interest in the property was conveyed or transferred were associated within the meaning of subsection (3), they shall not be treated as having been so associated unless, additionally, at that time –
(a)one such body was beneficially entitled to not less than 90 per cent of any profits available for distribution to the shareholders of the other such body or a third such body was beneficially entitled to not less than 90 per cent of any profits available for distribution to the shareholders of each, and
(b)one such body would be beneficially entitled to not less than 90 per cent of any assets of the other such body available for distribution to its shareholders on a winding-up or a third such body would be beneficially entitled to not less than 90 per cent of any assets available for distribution to the shareholders of each on a winding-up,
and, for the purposes of this section –
(i)the percentage to which one body corporate is beneficially entitled of any profits available for distribution to the shareholders of another body corporate, and
(ii)the percentage to which one body corporate would be beneficially entitled of any assets of another body corporate on a winding-up,
means the percentage to which the first body corporate is, or would be, so entitled either directly or through another body corporate or other bodies corporate or partly directly and partly through another body corporate or other bodies corporate.
(5)This section shall not apply to an instrument unless the instrument was not executed in pursuance of or in connection with an arrangement under which –
(a)the consideration, or any part of the consideration, for the conveyance or transfer was to be provided or received, directly or indirectly by a person, other than a body corporate which at the time of the execution of the instrument was associated within the meaning of subsection (3) and (4) with either the transferor or the transferee (being, respectively, the body from whom and the body to whom the beneficial interest was conveyed or transferred),
(b)that interest was previously conveyed or transferred, directly or indirectly, by such a person, or
(c)the transferor and the transferee were to cease to be associated within the meaning of subsections (3) and (4),
and, without prejudice to the generality of paragraph (a), an arrangement shall be treated as within that paragraph if it is one under which the transferor or the transferee, or a body corporate associated with either as there mentioned, was to be enabled to provide any of the consideration, or was to part with any of it, by or in consequence of the carrying out of a transaction or transactions involving, or any of them involving, a payment or other disposition by a person other than a body corporate so associated.
(6)[deleted]
(7)If –
(a)where any claim for exemption from duty under this section has been allowed, it is subsequently found that the exemption was not properly due, or
(b)the transferor and transferee cease to be associated within the meaning of subsections (3) and (4) within a period of 2 years from the date of the conveyance or transfer,
then the exemption shall cease to be applicable and stamp duty shall be chargeable in respect of the conveyance or transfer as if subsection (1) had not been enacted together with interest on the duty, calculated in accordance with section 159D, to the day on which the duty is paid, in a case to which paragraph (a) applies, from the date of the conveyance or transfer or, in a case to which paragraph (b) applies, from the date the transferor and transferee ceased to be so associated.
(7A)Where a transferor –
(a)is liquidated, or
(b)is dissolved without going into liquidation and a conveyance or transfer has been effected as a result of a merger by absorption (within the meaning of section 463 or 1129 of the Companies Act 2014) by reason of which the foregoing dissolution of the transferor has taken place,
the transferor and the transferee shall, for the purposes of subsections (5)(c) and (7)(b), not be regarded as ceasing to be associated where, for a period of 2 years from the date of the conveyance or transfer –
(i)the beneficial interest that was conveyed or transferred from the transferor continues to be held by the transferee, and
(ii)the beneficial ownership of the ordinary share capital of the transferee remains unchanged.
(7B)This section shall not apply unless the conveyance or transfer of a beneficial interest in property, or the liquidation referred to in subsection (7A)(a), is effected for bona fide commercial reasons and does not form part of a scheme or arrangement of which the main purpose, or one of the main purposes, is the avoidance of liability to any tax or duty.
(8)For the purposes of subsection (4) –
(a)the percentage to which one body is beneficially entitled of any profits available for distribution to shareholders of another company has, subject to any necessary modifications, the meaning assigned to it by section 414 of the Taxes Consolidation Act, 1997, and
(b)the percentage to which one body is beneficially entitled of any assets of another body available for distribution on a winding-up has, subject to any necessary modifications, the meaning assigned to it by section 415 of the Taxes Consolidation Act, 1997.
(9)This section shall apply notwithstanding that a body corporate, referred to in this section, is incorporated outside the State, and such body corporate, corresponds, under the law of the place where it is incorporated, to a body corporate which has an ordinary share capital within the meaning given in subsection (3A) and subject to any necessary modifications for the purpose of so corresponding, all the other provisions of this section are met.
(10)Subsection (1) shall not apply to an instrument conveying or transferring stocks or marketable securities (in this subsection referred to as the ‘second transfer’) to the extent of the consideration for the sale that is attributable to those of the stocks or marketable securities being conveyed or transferred that were conveyed or transferred immediately prior to the second transfer by an instrument or instruments, as the case may be, to which section 75, as inserted by the Finance Act 2007, applied.
(11)In the case of –
(a)a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014 –
(i)the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii)the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
(b)a merger undertaken in accordance with Chapter 16 of Part 17 of the Companies Act 2014, the order made under section 1144 of that Act shall be regarded as a conveyance on sale.
80.
Reconstructions or amalgamations of companies.
(1)
(a)In this section –
“acquiring company” means, subject to paragraph (b), a company with limited liability;
“merger” means a merger undertaken in accordance with Chapter 3 of Part 9 or Chapter 16 of Part 17 of the Companies Act 2014;
“shares” includes stock;
“successor company” and “transferor company” have the meanings given to them by section 461 of the Companies Act 2014;
“undertaking” includes part of an undertaking.
(b)References in this section to a company shall be construed as including references to a society registered under the Industrial and Provident Societies Act 1893.
(2)
(a)This subsection applies where there is a scheme for the bona fide reconstruction of any company or the amalgamation of any companies and where, in connection with the scheme, the following conditions apply:
(i)a company with limited liability is to be registered, or a company has been established by Act of the Oireachtas, or the nominal share capital of a company has been increased,
(ii)the company (in this section referred to as the ‘acquiring company’) is to be registered or has been established or has increased its capital with a view to the acquisition of either –
(I)the undertaking of a particular existing company (in this section referred to as the ‘target company’), or
(II)not less than 90 per cent of the issued share capital of a target company,
and
(iii)the consideration for the acquisition (except such part of that consideration as consists in the transfer to or discharge by the acquiring company of liabilities of the target company) consists as to not less than 90 per cent of that consideration –
(I)where an undertaking is to be acquired, in the issue of shares in the acquiring company to the target company or to holders of shares in the target company, or
(II)where shares are to be acquired, in the issue of shares in the acquiring company to the holders of shares in the target company in exchange for the shares held by them in the target company.
(b)For the purposes of paragraph (a)(i) in so far as it relates to a company with limited liability that is to be registered, a company with limited liability does not include a private company limited by shares to which Part 2 of the Companies Act 2014 applies.
(c)For the purposes of paragraph (a)(i), a company that has issued any share capital shall be treated as if it had increased its nominal share capital.
(3)Subsection (2) shall not apply unless –
(a)it is provided by the memorandum of association of the acquiring company or the Act establishing the acquiring company that one of the objects for which the company is formed is the acquisition of the undertaking of, or shares in, the target company, or
(b)it appears from the resolution, Act or other authority for the increase of the capital of the acquiring company that the increase is authorised for the purpose of acquiring the undertaking of, or shares in, the target company.
(4)This subsection applies where –
(a)a merger is undertaken, and
(b)the successor company is a private company limited by shares, a designated activity company or a public limited company that is not an investment company within the meaning of section 2, 963 or 1001, respectively, of the Companies Act 2014.
(5)Where subsection (2) or (4) applies, and subject to this section, stamp duty under the following headings in Schedule 1 –
(a)‘CONVEYANCE or TRANSFER on sale of any stocks or marketable securities.’,
(b)‘CONVEYANCE or TRANSFER on sale of a policy of insurance or a policy of life insurance where the risk to which the policy relates is located in the State.’, or
(c)‘CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance.’,
shall not be chargeable on any instrument made for the purposes of or in connection with –
(i)the transfer of the undertaking or shares, or
(ii)the assignment of any debts, whether such debts are debts of the target company assigned to the acquiring company or, as the case may be, debts of the transferor company assigned to the successor company as a result of the merger.
(6)In the case of an instrument made for the purposes of or in connection with a transfer to a company (within the meaning of the Companies Act 2014), subsection (5) shall not apply unless the instrument is executed within the period of 12 months from the date of the registration of the acquiring company or the date of the resolution to increase the nominal share capital of the acquiring company.
(7)
(a)This subsection applies to any property, an instrument for the conveyance of which is chargeable to stamp duty under or by reference to the following heading in Schedule 1, namely: ‘CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance.’.
(b)Subsection (5) shall not apply to an instrument made for the purposes of or in connection with the transfer of an undertaking that includes any property to which this subsection applies, where a conveyance of that property has not been obtained by, as the case may be, the target company or the transferor company prior to the date of the execution of the instrument.
(8)If –
(a)in respect of any claim for exemption from duty under this section which has been allowed, it is subsequently found that the exemption was not properly due, or that the conditions specified in subsection (2) are not fulfilled in the reconstruction or amalgamation as actually carried out,
(b)in respect of shares in the acquiring company which have been issued to the target company in consideration of the acquisition, the target company within a period of 2 years from the date, as the case may be, of the registration or establishment, or of the authority for the increase of the capital, of the acquiring company ceases, otherwise than in consequence of reconstruction, amalgamation, liquidation or merger, to be the beneficial owner of the shares so issued to it, or
(c)in respect of any such exemption which has been allowed in connection with the acquisition by the acquiring company of shares in the target company, the acquiring company within a period of 2 years from the date of its registration or establishment or of the authority for the increase of its capital, as the case may be, ceases, otherwise than in consequence of reconstruction, amalgamation, liquidation or merger, to be the beneficial owner of the shares so acquired,
then the exemption shall cease to be applicable and stamp duty shall be chargeable in respect of the conveyance or transfer as if subsection (5) had not been enacted together with interest on the duty, calculated in accordance with section 159D, to the day on which the duty is paid, in a case to which paragraph (a) applies, from the date of the conveyance or transfer or, in a case to which paragraph (b) applies, from the date the target company ceased to be the beneficial owner of the shares so issued to it or, in a case to which paragraph (c) applies, from the date the acquiring company ceased to be the beneficial owner of the shares so acquired.
(9)If in the case of any scheme of reconstruction or amalgamation the Commissioners are satisfied that at the proper time for making a claim for exemption from duty under subsection (2) there were in existence all the necessary conditions for such exemption other than the condition that not less than 90 per cent of the issued share capital of the target company would be acquired by the acquiring company, subject to section 159A, the Commissioners may –
(a)if it is proved to their satisfaction that not less than 90 per cent of the issued capital of the target company has under the scheme been acquired within a period of 6 months from –
(i)the last day of the period of one month after the first allotment of shares made for the purposes of the acquisition, or
(ii)the date on which an invitation was issued to the shareholders of the target company to accept shares in the acquiring company,
whichever first occurs,
and
(b)on production of the instruments on which the duty paid has been impressed,
repay such an amount of duty as would have been remitted if that condition had been originally fulfilled.
(10)This section shall apply notwithstanding –
(a)that the acquiring company referred to in this section is incorporated in –
(i)another Member State of the European Union,
(ii)an EEA State within the meaning of section 80A, or
(iii)the United Kingdom,
or
(b)that the target company referred to in this section is incorporated outside the State,
but only where such acquiring company or target company incorporated outside the State corresponds, under the law of the place where it is incorporated, to an acquiring company or target company, as the case may be, within the meaning of this section and subject to any necessary modifications for the purpose of so corresponding, all the other provisions of this section are met.
(11)In the case of –
(a)a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014 –
(i)the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii)the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
(b)a merger undertaken in accordance with Chapter 16 of Part 17 of the Companies Act 2014, the order made under section 1144 of that Act shall be regarded as a conveyance on sale.
(12)This section shall not apply unless the scheme of reconstruction or amalgamation or the merger is effected for bona fide commercial reasons and does not form part of a scheme or arrangement of which the main purpose, or one of the main purposes, is avoidance of liability to any tax or duty.