Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

I move amendment No. 65:

In page 137, between lines 27 and 28, to insert the following new section: “Implementation of Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation

73.(1) Part 33 of the Principal Act is amended—

(a) in section 817RA(1), by the substitution of the following definition for the definition of “Directive”:

“ ‘Directive’ means Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 2014, Council Directive (EU) 2015/2376 of 8 December 2015, Council Directive (EU) 2016/881 of 25 May 2016, Council Directive (EU) 2016/2258 of 6 December 2016, Council Directive (EU) 2018/822 of 25 May 2018, Council Directive (EU) 2020/876 of 24 June 2020 and Council Directive (EU) 2021/514 of 22 March 2021;”,

and

(b) in section 817REA—

(i) in subsection (3), by the insertion of “, 32a” after “31”, in both places where it occurs,

(ii) in subsection (4)(a), by the substitution of “, the Central Register of 30 [SECTION 64] Beneficial Ownership of Trusts and the Central Mechanism of Ownership of Bank and Payment Accounts and Safe-Deposit Boxes, and”, for “and the Central Register of Beneficial Ownership of Trusts, and”, and

(iii) in subsection (8), by the substitution of “, the Registrar of Beneficial Ownership of Trusts or, in the case of the Central Mechanism of Ownership of Bank and Payment Accounts and Safe-Deposit Boxes, the Central Bank of Ireland, and” for “or the Registrar of Beneficial Ownership of Trusts, and”.

(2) Part 38 of the Principal Act is amended—

(a) in section 891GA(2), by the substitution of the following definition for the definition of “Directive”:

“ ‘Directive’ means Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 2014, Council Directive (EU) 2015/2376 of 8 December 2015, Council Directive (EU) 2016/881 of 25 May 2016, Council Directive (EU) 2016/2258 of 6 December 2016, Council Directive (EU) 2018/822 of 25 May 2018, Council Directive (EU) 2020/876 of 24 June 2020 and Council Directive (EU) 2021/514 of 22 March 2021;”,

and

(b) by the insertion of the following section after section 891J (inserted by section 72):

“Implementation of Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation in relation to presence requests

891K.(1) For the purpose of this section—

‘administrative enquiry’ means any control, check or other action carried out by an authorised officer by virtue of Regulation 14 of the Regulations of 2012;

‘authorised officer’ means a person appointed as an authorised officer under Regulation 12 of the Regulations of 2012;

‘books, records or other documents’ has the same meaning as in section 900(1);

‘competent authority’ means the authority designated as such by a Member State for the purposes of the Directive and, in relation to the State, means the Revenue Commissioners;

‘Directive’ means Council Directive 2011/16/EU of 15 February 2011 as amended by Council Directive 2014/107/EU of 9 December 2014, Council Directive (EU) 2015/2376 of 8 December 2015, Council Directive (EU) 2016/881 of 25 May 2016, Council Directive (EU) 2016/2258 of 6 December 2016, Council Directive (EU) 2018/822 of 31 [SECTION 64] 25 May 2018, Council Directive (EU) 2020/876 of 24 June 2020 and Council Directive (EU) 2021/514 of 22 March 2021;

‘foreign tax official’ means an official who is—

(a) authorised by the requesting authority pursuant to Article 11.1 of the Directive to act in the capacity of a competent authority on behalf of the Member State concerned, or

(b) authorised by the requesting authority under the Directive to assist or represent the official referred to in paragraph (a) in the performance of his or her functions;

‘nominated officer’ means a foreign tax official to whom a written authorisation has been given to perform the functions conferred by virtue of this section;

‘requested authority’ means the Revenue Commissioners;

‘Regulations of 2012’ means the European Union (Administrative Cooperation in the Field of Taxation) Regulations 2012 (S.I. No. 549 of 2012);

‘written authorisation’ has the meaning given to it by subsection (2).

(2) For the purposes of the performance of the functions conferred by virtue of this section on a foreign tax official, the Revenue Commissioners may issue an authorisation in writing (in this section referred to as a ‘written authorisation’) to such foreign tax official which shall contain—

(a) the name of the foreign tax official and a statement that he or she is a nominated officer,

(b) a photograph and signature of that official,

(c) particulars of that official’s authorisation under this section,

(d) the duration of the written authorisation,

(e) the name of the person who is the subject of the administrative enquiry concerned,

(f) a hologram showing the logo of the Office of the Revenue Commissioners, and

(g) the facsimile signature of a Revenue Commissioner.

(3) Subject to subsections (4) and (5), a foreign tax official may, by agreement between the requested authority and the requesting authority and in accordance with the arrangements laid down by the requested authority, with a view to exchanging information for the purposes of the Directive—

(a) be present in the offices where the requested authority performs its functions,

(b) be present during administrative enquiries carried out by the requested authority, and

(c) participate, by electronic means where appropriate, in the administrative enquiries carried out by the requested authority.

(4) A foreign tax official may only be present or participate in administrative enquiries, pursuant to subsection (3), where such foreign tax official is a nominated officer.

(5) In respect of a nominated officer being present or participating in administrative enquiries pursuant to subsection (3), that presence or participation in such enquiries means—

(a) reviewing books, records or other documents to which the competent authority has access for the purposes of the enquiry concerned, and

(b) requesting, from any person present during the course of the enquiry concerned, reasonable assistance, including providing information and explanations required by the nominated officer, where such assistance, information and explanations would be available to the competent authority for the purposes of the enquiry concerned,

to the extent that—

(i) such presence or participation by the nominated officer relates solely to the requested information, and

(ii) any information sought by the nominated officer relates solely to the requested information.

(6) Nothing in this section shall be construed as permitting a nominated officer to carry out any enquiries other than when participating in administrative enquiries commenced and carried out by the competent authority.

(7) A nominated officer performing the functions conferred on him or her by virtue of this section shall, on request, produce—

(a) his or her written authorisation, and

(b) his or her authorisation from the requesting authority stating his or her identity and official capacity.

(8) Where, in the performance of any functions under this section in relation to him or her, a nominated officer is requested to produce or show his or her authorisation for the purposes of this section, the production by the nominated officer of his or her written authorisation—

(a) shall be taken as evidence of authorisation under this section, and

(b) shall satisfy an obligation under this section which requires the nominated officer to produce such authorisation on request.

(9) A word or expression which is used in this section and which is also used in the Directive has, unless the context otherwise requires, the same meaning in this section as it has in the Directive.”.

(3) Subsections (1)and (2)shall come into operation on 1 January 2023.”.

Section 73 transposes a number of aspects relating to the EU directive on administrative co-operation, commonly knows as DAC 7, in reference to it being the seventh iteration of the directive. In addition to the main features of DAC 7 that relate to digital platform operators, DAC 7 also introduced amendments to provide for increased sharing of information between EU member states to provide further clarity to existing provisions and their operation, and updated provisions with respect to data protection and the uses to which the exchanged information can be put.

The main features are access to the central mechanism of ownership of bank and payment accounts in safety deposit boxes to ensure that obliged entities under money laundering legislation are compliant with DAC and provisions to allow for the presence and participation of foreign tax officials in inquiries conducted by Revenue. Many of these provisions were already contained in a statutory instrument, but DAC 7 extended these to include electronic presence and participation. These provisions will now be contained in the Taxes Consolidation Act and include powers to allow for presence and participation during these inquiries.

These updates will increase the effectiveness and efficiency of the exchange of information between member states to provide valuable information that helps protect Ireland's tax base and ensure that DAC 7 is transposed in line with the 31 December 2022 deadline, with a final transposition relating to joint audits being adopted next year.