Residence & Liability

Residence

An individual who is resident in Ireland is liable to capital gains tax on all of his gains worldwide.  He may also be liable in another country or jurisdiction in which event a double taxation or a unilateral credit may be available for tax paid in that other country.

The rules for residence are the same as in income tax.  The so called split residence rule applicable to employment income does not apply to capital gains tax.  Therefore there is a trap in respect of persons who dispose of assets early in the calendar year and thereafter become resident in Ireland.

A person who is ordinarily resident is likewise subject to capital gains tax on the worldwide disposal. After some notorious cases of persons deliberately going non-resident for a period in order to make large capital gains legislation was introduced to deem certain persons temporary non resident subject to capital gains tax. The rules apply where an individual becomes non-resident and becomes resident again within five years.  The provision applies to assets comprising at least 5% of the value of a company which exceeds €500,000.  Certain other detailed conditions apply.

A resident company is subject to capital gains tax on its worldwide disposal.  A foreign resident company is subject to capital gains tax on disposals by branch or agency within the State.

Residence + Domicile

A person who is resident or ordinarily resident and domiciled in Ireland is liable to CGT on disposals of all of his assets worldwide, irrespective of whether their proceeds are remitted to Ireland.

Where a gain cannot be transferred to the state because of foreign legislation or government action is possible to apply to Revenue to defer liability until the proceeds can be transferred

An individual who is resident or ordinarily resident in Ireland, but not Irish domiciled, is only liable to capital gains on the disposal of assets outside Ireland  only to the extent that they are remitted (transferred) into Ireland. It is presumed that monies remitted in our the proceeds of the gain rather than pre-existing capital. The contrary may be shown.

There is a  levy in respect of non-domiciled individuals of high net worth.  See our separate chapter in relation to personal tax issues.

Domicile

Domicile requires a long-term connection with a country.  Generally one is domiciled where one is born.  He can only lose his domicile if there is a firm intention to permanently reside elsewhere.

Therefore, a person may be resident in Ireland for prolonged periods but still retain their domicile because they have not had adopted a fixed intention to remain in Ireland permanently. Equally, a person may acquire domicile quickly or immediately in other circumstances.

Remission of Gains

An Irish resident or ordinarily resident person who is domiciled outside Ireland is subject to capital gains tax only in respect of disposals occurring outside Ireland after he becomes resident, the proceeds of which are remitted into Ireland. Where they represent a capital gain which took place while the person was resident or ordinarily resident it is taxable.

Prior to November 2008,  the gains of a non-domiciled person realised in the United Kingdom are not taxed and the remittance basis did not apply. Since that the remittance applies to gains of non-domiciles persons in the the UK.

Remitted gains of a non domiciled resident / ordinary resident, are taxed in the year in which they are sent to Ireland.  There are  similar rules as in relation to income tax.

If  monies can be shown to represent a capital gain or income earned before the person became resident, then it will  be exempt form Irish CGT. The rules as to capital gains are those applying in their year of the disposal.

Where an Irish resident but non-domiciled person remits monies from abroad this may be the proceeds of income or capital gains earned or realised before he became resident.  In this case it is capital and is taxable neither as income or capital gains.

Where the monies remitted into Ireland comprise income they may be subject to income tax under equivalent provision.   Problematical issues can arise in relation to determining whether the monies are remitted from income capital or pre-existing pre-residence.

Anti-Avoidance

There are anti-avoidance provisions which are aimed at non-domiciled individuals indirectly enjoying the benefit of monies representing income or capital gains situate outside Ireland.  These provisions cover, for example, loans which are paid off abroad from capital gains tax monies as well as more sophisticated transactions.

When a non-domiciled individual transfers an asset  outside the State  to his or her spouse, which would  be subject to capital gains tax if remitted,  then amounts remitted into the State deriving from the transfer are treated as remitted by the spouse who made the transfer to his spouse or civil partner. The individual must be resident or ordinarily resident at the State at the time of transfer.  A prior capital gain is required in respect of the transferor.

The gain is deemed to have been received by the resident non-domiciled individual. The provision applies where the person’s spouse or civil partner partner brings any amount derived from that transfer into the State after 24th October 2013.  The amount brought in is deemed the remittance.

Always Taxable Assets

Certain assets are subject to capital gains tax regardless of the residents ordinary residence or domicile of the person disposing of the asset.

A person who is neither resident nor ordinarily resident in Ireland is subject to Irish capital gains tax only in respect of so-called specified assets. Specified assets are

• land or buildings in the state
• minerals and petroleum rights in the state or within the Irish Continental shelf
• unquoted shares in companies which derive most (more than 50%) of their value from such assets.

Where prior to disposal cash is invested in the company so that it becomes less than 50% derived from such specified assets anti-avoidance legislation brings the disposal back within the charge. This provision does not apply if there is a commercial justification for the investment of the funds.

The exclusion for shares which are quoted on a stock exchange is applicable only to shares that are actively and substantially traded. Certain anti-avoidance provisions in Finance Act 2015 were extended to assets other than monies. The provisions apply to disposals made after 19^th October 2017.

Temporary Non-Residence

There is a special charge in respect of persons who become temporarily non-resident.  This only applies to certain disposals of shareholdings by 5% or more companies or exceeding €500,000 where a person is non-resident for a period of less than six years.  See our chapter on so called anti-avoidance.

Where there has been increase or decrease in the market value of the assets  between the last day of the year of departure and the date of disposal, the market value of the assets on the date of disposal is used for the CGT charge.

Where an individual has ceased to be resident in the state for a period of less than five years before becoming resident again certain disposals within that period may be subject to capital gains tax under anti-avoidance rules.

Capital gains tax may be deemed to apply in respect of certain classes of asset owned at the end of the tax year prior to cessation of residence where they are disposed of during the period of nonresidence. The assets comprise a shareholding in a company wheresoever established which is at least 5% of the value of the share capital of €500,000.

Although the disposal is deemed to arise before departure is it is to be accounted for in the year in which the person becomes resident in the state once again. If foreign tax is payable on the disposal then it may be credited under the double taxation agreement.

Companies

A company is resident in Ireland for capital gains tax purposes in accordance with the corporation tax rules. The most important criteria is the place of central management and control of the company.A resident company is subject to capital gains tax on all of its gains worldwide.

As with corporation tax disposals of assets held by a branch within the state of a non-resident company are subject to Irish capital gains tax. This charge applies to assets within the state used for the purpose of a trade carried on the State by that branch agency or held for that purpose.