The prevalence of primarily US headquartered groups using non-tax resident companies has caused an unnecessary focus on the underlying nature of the Irish tax system. In today's Irish Budget, the Minister for Finance outlined proposals to cause such companies to be regarded as Irish tax resident and liable to Irish tax at either a 12.5% rate on trading income or otherwise at 25%. To maintain Ireland's competitiveness, the Minister also announced an intention to introduce an OECD-compliant internationally tax attractive knowledge development box and other fiscally attractive initiatives.
For some years, leaders of the G20 group of economies have been focused on the international tax planning of multinational groups. Various high profile international groups have been targeted, probably unfairly, for taking advantage of countries' differing tax laws to maximise the returns available to shareholders.
The cross-border political campaign has led to the establishment of the OECD Base Erosion and Profit Shifting (BEPS) initiative, which is seeking to develop an international framework for acceptable international tax norms. In one of its earlier reports, the OECD highlighted that the colloquially known double Irish and double Dutch structures, while lawful, were unacceptable. More recently, the EU competition commissioner has commenced various state aid investigations to ascertain if any unfair advantage has been conferred on certain companies establishing within an EU state by reference to rulings given by member states' tax authorities.
The colloquially known double Irish is a structure that, in its simplest form, is driven by the interaction of the US and Irish tax codes. It enables profits from non-US intellectual property to be paid by an Irish tax resident corporate to an Irish incorporated but non-Irish tax resident (INIR). Under the US tax code, and subject to various constraints, the US applies a 35% tax rate when income is repatriated to the US but not while such income is located in an INIR. In Budget 2015 the Minister for Finance has introduced changes to the use of INIRs.
Finance Bill proposals
It is proposed that the Finance Bill, when published, will contain provisions to:
cause, with effect from January 1 2015, any newly Irish incorporated companies to be regarded as Irish tax resident;
provide a grandfathering of existing INIRs. The non-Irish tax residence will be capable of being maintained until December 31 2020. Thereafter, the companies will become Irish tax resident;
enable Irish R&D credits at 25% of eligible spend to be available from January 1 2015 on actual rather than incremental spend;
provide various incentives in relation to special assignment relief for foreign secondees into Ireland and other income tax incentives; and
cause an enhanced ability to obtain tax amortisation on intellectual property (IP), that is not limited to 80% of spend. Provision will also be made to amend the definition of eligible IP expenditure to explicitly include customer lists.
The Minister has also announced a public consultation to introduce an OECD-compliant knowledge development box to take effect from 2016, or when the OECD BEPS initiative concludes in 2015. This should encourage IP to become located in Ireland alongside EU R&D activity.
Comment
The proposals provide welcome certainty and demonstrate Ireland's clear desire to comply with the G20-endorsed new international tax environment. The grandfathering regime for INIRs provides an opportunity for groups to rearrange their affairs in a manner that takes into account the next BEPS reports due in 2015 and Ireland's proposed new knowledge development box. Ireland's move in Budget 2014 on stateless Irish incorporated companies was an insufficient step in dealing with concerns about the international efficacy of the Irish tax regime; the proposed changes provide a clear indication of Ireland's desire to be fiscally best-in-class.
Given Ireland's desire to expand its double tax treaty network, it is likely that Irish incorporated companies that are effectively managed outside of Ireland within the terms of the appropriate double tax treaty will not be regarded as Irish tax resident.
To preserve a short-term opportunity, Ireland could have waited to change its law in a manner that would not put it at a competitive disadvantage to other countries' tax regimes. It should be commended at G20 and OECD level for adopting a first mover approach to implementing BEPS while also encouraging dialogue on development of a knowledge development box that is best-in-class and not falling foul of any preferential taxation regime highlighted by OECD Action 5. In the interests of long-term certainty, the Minister's proposals are welcome and demonstrate the long-term investment proposition of Ireland Inc and its commitment to its well established 12.5% corporate tax rate.
Ireland has taken a lead in adhering to one of Adam Smith's canons of taxation in giving a road map that Irish tax liabilities for international groups locating here will be clear and certain. For additional information on "A Road Map for Ireland's Tax Competitiveness", see here.
John Gulliver (jgulliver@mhc.ie) is head of tax and
Robert Henson (rhenson@mhc.ie) is a partner of Mason Hayes & Curran, the principal Irish correspondent for the Corporate Tax channel of www.internationaltaxreview.com.
