Restricting Allowances

New Property Allowances

At the turn of the century numerous property inventive allowances existed. See the separated chapters. Many were later criticised as unnecessary and contributed to the property boom 1994-2007.

Most allowances are being phased out in the period to 2006. There are was pressure to allow approved projects to proceed.

Most new property incentive reliefs were terminated in 2006 with the maximum possible extension for completion of projects being 31 July 2008. The tax life of such properties usually commenced at completion of the property, so they continued to be relevant for many years.

Limitation of Allowances

Historically capital allowances from property-based investments could be offset against all income. This has been restricted and limited for certain types of capital allowance. Capital allowances carried forward may be available against rental income but not income generally. There is a mandatory order of use of allowances and losses  which limits freedom of choice as to their use.

Holiday cottages and furnished residential dwellings (tourist based) allowances are available only against rental income. Some industrial buildings allowances are available but there are restrictions of losses to €31,750 against other income. This includes industrial buildings in the strict sense as well as some commercial properties which qualify for capital allowances.

In most cases hotel based capital allowances may be offset only against rental income. In the border Midlands and West region they may be offset against other income. Other restrictions apply.

Certain types of allowances were subject to termination or guillotine provisions so that they are no longer available.

2011 Termination

The Finance Act 2011 severely limited the use of losses and certain capital allowances. The provision applies to all schemes of qualifying expenditure.  In particular it applies to Section 23 relief (so-called) and variants of it.

Certain of the changes were modified in the Finance Act 2012. Under the provisions, balancing allowances in relation to a building or structure used in a trade may only be set off against the income of the trade.  It may not be set off against the income of another trade of that individual or against other income.  This applies to capital allowances arising in that particular year, as well as those carried forward from a previous year.

Where a person is in receipt of rental income from  a property, the capital allowances to which he is entitled may be set off against the rental income from the property itself.

In the case of property under area-based tax incentive schemes, the allowances are generally claimed over a period of seven or ten years.  For these schemes, unused capital allowances carried forward to the seventh or tenth  year after the period in which they were first claimed  are  lost after FA 2011.

Where allowances were given over a period greater than ten years, FA  2011 reduced the period to seven chargeable periods, including the period in which the allowance was first claimed.  Where the seventh period expired before the date the legislation commenced, the relief was lost on capital allowances yet to be given.

Where the seventh period had not yet expired the amount of capital allowances due to be given is reduced by 20% and given evenly over the balance of the seven-year period.  In all cases, any capital allowances carried forward beyond the end of the seventh chargeable period and into subsequent periods were loss.

Terminated Allowances

The measures apply to property-based capital allowances for passive investors, including   Temple Bar area,

• Customs House Docks area,
• designated areas and streets,
• enterprise areas,
• multistory car parks,
• accelerated capital allowances on certain industrial buildings,
• capital allowances in construction of certain commercial premises,
• capital allowances on buildings and works in enterprise areas,
• accelerated capital allowances on refurbishment of certain industrial buildings and structures in qualifying areas,
• qualifying rural areas,
• park and ride facilities,
• designated areas of certain towns.

The provisions apply to writing down allowance, balancing allowance and accelerated capital allowances.The provisions apply to companies as well and individuals.

Limitation & Termination

Where the first allowance is at the rate of 15%,  unused allowances may not be carried forward beyond year seven.  In the case of a 10% rate, unused allowances may not be carried forward beyond year ten.

Where the period is between 10 and 25 years, the allowances may not be carried on beyond seven years from the time the capital allowances were first claimed.  Where the seven-year period had expired already, they were lost.  Where the period was current, the allowances were run down over the remainder of the seven-year period.  There is a 20% reduction in allowances but to some extent, the balance of the allowances might be available faster than would otherwise be the case.

Where individuals or partners carry on a trade, other than as active traders or partners, capital allowances arising on a building used in the trade, may only be offset against income and profits of that trade and not against other income and profits of the individual. Many such schemes had been subject to a limit of £25,000  (€31,750) since  the turn of the century).

Where capital allowances were used to reduce rental income, the capital allowances are ring-fenced and can only be offset against rental income arising from that building. Relief for lessors of rented residential accommodation was changed in a similar manner to other capital and similar tax allowances.  The changes apply to both individuals and companies.  Relief is restricted to rental income from the property, giving rise to the relief.  Unused reliefs which is left over after the 10-year period is lost.

Where a person sells the property within the holding period, the relief is not available to the new owner.  Claw back applies to the  relief given to the existing owner.

Where properties are not let under a qualifying lease within six months of the relevant date, the 10-year period commences.

Other Restrictions

Stock relief for farmers was carried forward for two years in 2011.  It is available to certain qualifying farmers.

The exemption for certain income derived from patent royalties and related distributions is abolished in respect of income paid after 24th November 2011.

FA 2011 abolished the 20% investment allowance in relation to mineral exploration and capital expenditure on a new machinery and plant for the purpose of the trade of a working mine.

2012 Mitigation

FA 2012 Act mitigated the significant restrictions on tax allowances in relation to historical reliefs in relation to expenditure on qualifying residential property (so called S.23 properties). The relief allowed a deduction  against rental income in computing tax liability for Irish rent, provided the property was let during a period of 10 years.

The FA 2011 legislation restrictions were the subject of an economic impact assessment and pursuant to it,  the 2012 revisions were enacted.  The FA 2011 changes were  effectively repealed.  Accordingly the section 23 type reliefs may be used for their relevant periods.  FA 2011 had limited the relief to the property itself, for which the expenditure was incurred.  This effectively made it useless in many cases, given that the interest on the purchase loan may already have exhausted tax relief, so that the allowances were superfluos.

Where a person disposes of a “section 23” property within the 10-year period, the new owner is entitled to the relief and the seller / transferor  suffer a clawback on that claim. The  2011 legislation had removed the right of the new owner / transferee to claim relief and FA 2012 reversed the position.T he position  remains that on sale, there is a clawback of relief claimed,  which immediately becomes chargeable as if it was additional rental income.

Prior to FA 2012, a balancing charge arising on the sale of a capital asset was added to the individual’s income for the purpose of calculating the restriction on relief for high earners.  FA 2012 changed this position.  Unused capital allowances which had been carried forward and which reduced the amount of the balancing charge are not treated as relief for the purpose of the high earners restriction on reliefs and allowances.

Some 2011 Restriction Repealed

FA 2011 had introduced restrictions on property based capital allowance schemes used by passive investors.  The section was never commenced.  FA 2012 repealed these provisions.

Investors who claim accelerated capital allowances were  not to be entitled to use them where the tax life  expired after 2014.  Where it expired before that, the investor was not able to carry forward the allowances beyond that date.  However, the provisions which ring-fenced expenditure to the particular building, were abolished by FA 2012.

The restrictions apply to the incentive types allowances that have been introduced over the last 20 to 30 years.  They include the following

• area based allowances for certain commercial premises including Custom House Docks and Temple Bar;
• accelerated allowances for industrial buildings (which  qualify for ordinary allowances in any event)
• allowances for a certain commercial premises in designated areas, designated streets, enterprise areas, multi-storeyed car park
• allowances in qualifying resorts areas, qualifying rural areas, park and ride facilities and designated areas of certain town
• Urban and Rural scheme areas
• certain capital allowances related to tourism facilities in the mid-Shannon area
• capital allowances for third level education buildings
• capital allowances for certain child care purposes and
• certain area based allowances brought forward

After 1st, January 2013 no carry forward of unused allowance is permitted.

Their provisions do not apply to trades in which the person is an active participant or partner.

USC Property Relief Surcharge

The Finance Act 2012 was the first Finance Act based on a budget prepared by the Fine Gael /Labour coalition elected in February 2011. A property relief surcharge was introduced for individual with gross income over €100,000 euro who claim certain property reliefs.

The surcharge took the  form of additional Universal Social Charge of 5 percent of the amount of income sheltered by property relief in the year.  It applies to investors, both passive and active who claim accelerated capital allowances as well as residential property investors.

The allowances concerned include

• area based capital allowances such as in designated areas and streets,
• multi-storey car parks,
• temple bar,
• custom house dock site
• qualifying resorts
• refurbished hotels and industrial building,
• qualified rural areas,
• certain park and ride facility and
• registered holiday cottages, third level education buildings
• child care buildings and
• so-called section 23 type relief.

The charge applies at the rate of 5 percent to the income sheltered by the relief.  Of their nature the allowances were historical, brought forward lands from prior periods.

Modified Restriction 2012

FA 2012  repealed the FA 2011 provisions in relation to investment incentive  tax allowances.  Investors claiming such allowance may not use the allowances after expiry of the tax life  after January 2015. Where it ends before that date, the allowance may not be carried into 2015 and beyond.  However the provisions in FA 2011, which were never commenced and  which limited the allowances to the building itself, thereby negating much of their use, were repealed.

The provisions applied only to passive investors and ensured that any unused accelerated capital allowances, arising under any of the property or area-based tax incentive schemes that had existed and which are carried forward into the chargeable period immediately after the chargeable period in which the tax life of the building or structure has ended, were  lost. Where the tax life of a building has already ended or ends at any time up to the end of 2014, then the loss of these unused capital allowances will only take place for chargeable periods ending in 2015 and subsequently.

Capital allowances affected by the cut-off are essentially the incentive type capital allowances that have been provided for in the last 20 to 30 years.  They included  the following

• Custom House areas allowance
• Temple Bar area allowances,
• designated areas and streets
• enterprise areas
• multi-story car parking
• accelerated capital allowances for certain types of incentivised buildings
• capital allowances for construction or refurbishment of commercial premises (not otherwise qualifying for capital allowances)
• allowances for construction or refurbishment of buildings or structures in enterprise areas
• allowances for construction or refurbishment of certain multi story car park
• capital allowances in qualifying resort areas, qualifying rural areas and other qualifying areas
• park and ride facilities
• special allowances for industrial buildings (accelerated relative to the norm and
• allowances for commercial properties which would not otherwise not receive the benefit of capital allowances in such areas

Where the tax life of the building expires during a year before 2015,  no carry forward beyond the start of 2015 is allowed. Where the life expires  in 2015 or beyond, there is no carry forward of unused reliefs into future periods after the life is expired.

Scope of Modified Restriction

These positions do not apply to individuals where the capital allowances arising from assets used in a trade in which  the individual is an active partner. After the tax life has ended, no balancing charge will arise on a sale.

In the case of handful of reliefs, the tax life is seven years but a clawback would arise if they are sold in 10 years.  The applies registered nursing homes, approved convalescent homes, qualifying nursing homes, residential units, qualifying sports injury clinics and certain child care building.

FA  2012 provides that if the building is sold after its tax life, but before the claw back period ends the charge that arises may be reduced by capital allowances which would, but for the introduction of the cut-off point, have been available to be  carried forward.

The 2013 Act provides for the removal of the employment and investment incentive from the  higher earners restriction for a temporary period to 1 January 2017.  The higher earners restriction does not apply in respect of investment incentive shares.  Prior to 2017, the higher earners restriction is extended to plant and machinery allowances used in a manufacturing trade where they are claimed by passive investors.

Further Limitation of Passive Income

The Finance Act 2014 seeks to prevent the claiming of, to limit the claiming of losses relief by individuals engaged in a non-active capacity to a limit of €31,750 in respect of loss in trades for income tax purposes.

A person is deemed to be carrying on a trade in a non-active capacity if the individual does not work for the greater part of his time on the day-to-day management or conduct of the trade. An individual will not be treated as working for the greater part of his time on the day-to-day management or conduct of that trade, unless over the course of the period, he spends an average of at least 10 hours a week personally engaged on activities of the trade or profession.  The activities must be carried out on a commercial basis in such a way that profits of the trade or profession would reasonably be expected to be made in that period or within a reasonable time.

The Finance Act 2015 amended the high earners restriction. The income tax exemption on income, profits and gains from woodlands managed on a commercial basis was removed from the list of reliefs subject to the restriction. The rationale was that income and gains could vary significantly over the years so that the restriction could distort production.

Where a person is engaged in the trade or profession on a non-active capacity, the amount of loss is limited to €31,750 annually.  If the basis period is less than this, it is reduced proportionately.  This includes losses increased by capital allowances.

Scope of Restriction

The provisions do not apply to losses arising from the following: market, gardening, farming, qualifying expenditure on significant buildings, certain limited writing down allowances and balancing allowances, in respect of certain specified relief.

Where the individual carries on two or more trades, the limit of €31,750 is to be aggregated.

A person is deemed to carry on trade in a non-active capacity, if he does not work for the greater part of his time on the day-to-day management of the trade and spends an average of at least 10 hours a week personally engaged in activities of the trade.

Anti-avoidance provisions  apply to losses accruing in the period prior to termination of the trade.  No loss is allowed if it arises in whole or in part directly or indirectly, in consequence or in connection with a tax avoidance transaction.  This is a transaction, the main purpose of which is to give rise to relief.

The Finance Act 2015 provided with that the high earners restriction did not apply to unused rental  losses brought forward and that the amount of relief used rather than the relief claimed in year one would be subject to claw back.