Finance Bill 2012

The Finance Bill 2012 was publishedon 8 February 2012.

The measures introduced reflectgovernment stated policy to incentivise investment in Irish property, and to develop Ireland as a ‘smart economy’ and a base for multinational corporations.

We set out below a summary of themain provisions of the Bill which are relevant to owner managed enterprise and private clients.

Capital Gains Tax

 The rate of CGT is increased from25% to 30%, with effect from 7 December 2011.

Retirement Relief

Substantial changes to veryvaluable ‘retirement relief’ provisions of CGT law had been anticipated for a number of years. Whilst the relief remains in place a number of important changes are introduced in Finance Bill 2012. These changes – which will apply to disposals made on or after 1 January 2014 - are as follows:

The Minister’s stated intention inintroducing the respective caps of €500k and €3m for persons aged 66 or over is to encourage early transfer of family business to the next generation.

In anticipation of restriction oreven abolition of CGT ‘retirement relief’ provisions many family business owners arranged transfers of shares to their children during 2011. In most cases a redemption of founder shareholder equity occurred in tandem with the transfer to the children, allowing the founder shareholder to realise up to €750,000 from the company free of tax. We would expect that this will continue during 2012.

CGT holiday – Investment property

A new CGT incentive measure isbeing introduced to encourage residential and commercial property investment. Broadly, where a person acquires a property between 7 December 2011 and 31 December 2013 and holds this property for at least 7 years then any gain arising will be exempt from CGT, to the extent that such gain relates to the first 7 years of ownership (e.g. if the property has been held for 10 years then 7/10 of the gain is exempt).

Whilst the clear intention of thegovernment in introducing this measure is to encourage investment in Irish property, to avoid breach of EU freedom of capital rules the exemption applies to investment in any property within the EU/EEA. In many cases this may not be of particular benefit in respect of foreign property investment as most EU/EEA states are likely to impose tax on local property gains. However a number of countries, most notably the UK, do not impose tax on local property gains of Irish investors. This represents an opportunity for those who believe the UK / London property market is an attractive investment proposition.

Stamp Duty

The rate of Stamp Duty onnon-residential property is reduced to 2%. It is hoped by the government that this reduction, in conjunction with the CGT holiday discussed above will encourage investment in Irish property.

An automatic fine of €3,000 isintroduced for late filing of any Stamp Duty return. This level of penalty appears quite penal for cases where the actual Stamp Duty liability is minimal or Nil.

Gift and Inheritance Taxes

The rate of Capital AcquisitionsTax (“CAT”) has increased from 25% to 30%, with effect from 7 December 2011. Whilst this is a significant increase the Irish rate of tax on gifts and inheritances remains one of the lowest in Europe. In our view the prospect of the rate being increased further to 40% in future Budgets cannot be ruled out.

The tax-free threshold forgifts/inheritances received by a person from his or her parents is reduced to €250,000. The 2012 reduction continues the trend of cuts in this tax-free threshold, which stood at almost €550,000 in 2009.

Finally, the CAT pay and filedeadline is moved from 30 September to 31 October, i.e. the CAT return for gifts/inheritances in the 12 month period to 31 August must be made by 31 October in the following year.

Personal Tax

As announced in the Budget, therate of DIRT is increased to 30% from 1 January 2012. The full ‘marginal’ effective rate of tax on deposit interest income will be 34% including PRSI.

A new 30% rate of mortgageinterest relief applies in respect of certain loans taken out to acquire residential property during the boom years of 2004 to 2008.

Pensions

The deemed distribution amountfrom an Approved Retirement Fund (“ARF”) or a vested PRSA is increased from 5% to 6%.

Employer PRSI relief for employeepension contributions has been abolished, with effect from 1 January 2012.

Finally, the Income Tax rateapplying on transfers (on death) of pension assets to a child aged over 21 is increased to 30%, to bring the tax treatment here into line with the taxation of transfers (on death) of pension assets to children aged under 21 (whereby Capital Acquisitions Tax at 30% applies).

Research & Development Credit

The Finance Bill introduces anumber of measures which will be attractive to Irish small and medium sized enterprises carrying on R&D activities.

The first measure is therelaxation of the incremental nature of the system of Corporation Tax credit for R&D expenditure by introducing a provision that allows the first €100,000 of qualifying R&D expenditure each year to qualify for the credit, regardless of the level of R&D spend in the main ‘base year’ which is 2003. This change is worth €25,000 in annual tax savings to effected companies.

The second measure is theintroduction of an entirely new regime of allocation of company R&D credits to employees. Broadly, where a company has qualifying R&D expenditure it can ‘surrender’ part or all of its R&D credit to employees engaged in R&D activities. Any amount surrendered to an employee can be used by the employee to reduce his Income Tax liability, subject to certain limits.

It is widely accepted that thecurrent R&D credit regime is underutilised by small and medium business, due to mistaken perception that the regime only applies to hi-tech R&D carried out by large domestic and multinational companies. In fact the regime has much broader application and may deliver real tax savings to any company which incurs expenditure on research, testing, design or improvement of processes, etc.

Property - capital allowances shelters

A 5% surcharge (administered underUSC provisions) will apply to income sheltered by property capital allowance reliefs (Section 23 relief etc). This applies from 2012. For most taxpayers claiming these reliefs this will result in a €4,000 increase in annual tax liabilities.

The termination dates forutilisation of accelerated capital allowances (hotels, private hospitals, nursing homes, etc) are confirmed as the later of 2014 or the expiry of the tax-life of the underlying property.

Other measures

We summarise below a selection ofother Finance Bill 2012 measures:

Foreign Earnings Deduction (“FED”)  - a new form of tax relief foremployees/directors of Irish companies who spend 60 or more days per year working outside Ireland in Brazil, Russia, India, China and South Africa (the “BRICS” countries). Whilst this relief is welcome it is capped at €35k per annum which will limit its effectiveness as a measure to incentivise Irish companies to expand into these jurisdictions.

Conclusion

Please contact Brian Dignam - Partner shouldyou wish to discuss how the Finance Bill 2012 measures may affect your personal and business finances and consider any tax mitigation opportunities arising.

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