Michael Noonan (Limerick City, Fine Gael)

I do not accept there is a disparity between the treatment of children of civil partners and the children of married couples. Under law, people are obliged to look after their children, which includes providing financial support for them, regardless of whether the marriage is intact or has ended. That is why there is no tax incentive to pay maintenance to one's partner in respect of the maintenance of one's children. Maintenance payments are paid from after-tax income, which is the crucial difference.

Recommendations Nos. 3, 4 and 5 relate to the taxation provision of maintenance payments to children of a civil partnership. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 did not provide for court-ordered maintenance payments from an individual in respect of the child of his or her former civil partner. As this type of arrangement does not exist in the general law, it is not provided for in this tax law. Furthermore, there is no tax relief for maintenance payments in respect of children in general.

Individuals are expected to support their children from their after-tax income.

Recommendation No. 3 appears to seek to define a child in the case of maintenance payments in civil partnerships as also a child defined under section 465 of the Taxes Consolidation Act 1997, which deals with the incapacitated child tax credits. Section 465 of that Act relies on the definition of a claimant for an incapacitated child tax credit as one who has the custody of, and maintains, the child at his or her own expense. There is no mention in this section of marriage or spouse or any other term that would need to be amended to give equal treatment to civil partners. That is the reason this section of the Taxes Consolidation Act is not amended in this Bill. An individual has an entitlement to a tax credit in respect of an incapacitated child and this credit will continue to be available after that party has entered a civil partnership provided the adult continues to satisfy the qualifying criteria.

In the context of maintenance payments for children, payments made for the benefit of a child do not qualify for tax relief. However, a payment made for the support of an incapacitated child may give the payer an entitlement to all or part of the incapacitated child tax credit. This is a similar treatment for married couples and civil partners. I do not see a disparity of treatment here, so I cannot accept that recommendation.

Recommendation No. 4 appears to indicate that there could be maintenance orders ordered to be paid by one civil partner for the benefit of his or her civil partner's child. As I said previously, the civil partnership Act does not provide for this and this Bill does not, and cannot, change the rights of children so they have a right to be maintained by their parent's civil partner or former civil partner. These are family law issues which go beyond the scope of tax legislation. As this recommendation goes beyond the scope of the Bill and crosses into the area of family law, which is a matter for the Minister for Justice and Equality in the first instance, I cannot accept it.

Recommendation No. 5 replicates section 1025(4) of the Taxes Consolidation Act 1997. The purpose of that section is to confirm that there is no tax relief available for maintenance payments for children. I understand from Senator Zappone's comments on Second Stage that her intention is for tax relief to be available for maintenance payments for children of civil partners. This recommendation does not achieve this, so I cannot accept it.

Overall, the Finance (No. 3) Bill was drafted to provide for tax changes that are necessary as a consequence of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The tax law can only follow the general law in this matter, a point the Senator understands quite well because she referred to remarks made by the Minister of State, Deputy Brian Hayes, to this effect. I am not willing to jeopardise this Bill by making changes which provide entitlements, rights or obligations above and beyond those afforded in the civil partnership legislation or, indeed, in the Constitution. I am committed to this legislation and I do not wish to place it at risk of challenge in any way. Consequently, I am not in a position to accept the recommendations.