Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I move amendment No. 24:

24. In page 75, between lines 25 and 26, to insert the following: “Relief for investment in innovative enterprises

44.(1) The Principal Act is amended—

(a) in Part 19, by the insertion of the following Chapter after section 600A:

“CHAPTER 6A

Relief for investment in innovative enterprises

Interpretation

600B.In this Chapter—

‘accounting period’ shall be determined in accordance with section 27;

‘arrangement’ includes any agreement, understanding, scheme, transaction or series of transactions (whether enforceable or not);

‘associate’ has the same meaning in relation to a person as it has by virtue of subsection (3) of section 433 in relation to a participator;

‘authorised officer’ means an officer of the Revenue Commissioners authorised under section 600P(1);

‘business plan’ has the same meaning as in section 493;

‘certificate of going concern’ has the meaning given to it by section 600F(3);

‘certificate of commercial innovation’ has the meaning given to it by section 600F(4);

‘certificates of qualification’ means—

(a) a certificate of going concern, and

(b) a certificate of commercial innovation;

‘control’ shall be construed in accordance with subsections (2) to (6) of section 432;

‘date of investment’ means the date of the issue of the eligible shares;

‘director’ shall be construed in accordance with section 433(4);

‘EEA State’ has the same meaning as in section 489;

‘employee’ has the same meaning as in section 983;

‘eligible shares’ shall be construed in accordance with section 494;

‘expansion risk finance investment’ has the same meaning as in section 493;

‘follow-on risk finance investment’ has the same meaning as in section 493;

‘General Block Exemption Regulation’ has the same meaning as in Part 16;

‘innovative enterprise’ has the meaning given to it by Article 2(80) of the General Block Exemption Regulation;

‘linked businesses’ has the same meaning as in Part 16;

‘partner businesses’ has the same meaning as in Part 16;

‘qualifying company’ shall be construed in accordance with section 600C;

‘qualifying investment’ shall be construed in accordance with section 600J;

‘qualifying partnership’ shall be construed in accordance with section 600N;

‘qualifying subsidiary’ shall be construed in accordance with section 600D;

‘relevant trading activities’ has the same meaning as in Part 16;

‘relief group’ means a company, its partner businesses and linked businesses, taken together, and includes any relief group of which a company is a member and any company that was, at any time, a member of a relief group with a qualifying company or its qualifying subsidiaries;

‘SME’ has the same meaning as in Part 16;

‘undertaking in difficulty’ has the same meaning as in the General Block Exemption Regulation;

‘unlisted’ has the same meaning as in Part 16.

Qualifying company

600C.For the purposes of this Chapter, a company shall be a qualifying company if it holds certificates of qualification.

Qualifying subsidiary

600D. For the purposes of this Chapter, a subsidiary shall be a qualifying subsidiary where it is a company to which section 600F(2)(a)(ii) applies and satisfies the following conditions:

(a) the subsidiary is a 51 per cent subsidiary of the qualifying company;

(b) no other person has control of the subsidiary;

(c) no arrangements are in existence by virtue of which the conditions specified in paragraphs (a) and (b) could cease to be satisfied.

Qualifying investment (company perspective)

600E.(1) An investment shall not be a qualifying investment unless it is based on a business plan.

(2) An investment shall not be a qualifying investment if it is an expansion risk finance investment or a follow-on risk finance investment.

Certificates of qualification

600F.(1)(a) Subject to subsection (2), a company (in this section referred to as the ‘applicant company’) that is seeking to raise investments from qualifying investors or qualifying partnerships may apply to the Revenue Commissioners for the purpose of obtaining—

(i) a certificate of going concern, and

(ii) a certificate of commercial innovation.

(b) An application under paragraph (a) shall include—

(i) a business plan in respect of which the company is seeking investment,

(ii) details of each of the shareholders of the company including each shareholder’s name and address and shareholdings or ownership interests, as the case may be, in linked businesses or partner businesses, and

(iii) such other information and explanations as may be requested by the Revenue Commissioners for the purposes of making a determination as to whether the company complies with the conditions specified in subsection (2).

(2) A company shall not make an application under subsection (1) unless the following conditions are satisfied:

(a) the applicant company—

(i) is incorporated in the State, another EEA State or the United Kingdom,

(ii) is tax resident in the State, another EEA State or the United Kingdom and carries on, or intends to carry on, relevant trading activities from a fixed place of business in the State,

(iii) holds a tax clearance certificate within the meaning of section 1095,

(iv) is a company which—

(I) does not control (or together with any person connected with the company does not control) another company other than a qualifying subsidiary, and

(II) is not under the control of another company (or of another company and any person connected with that other company), unless such control is exercised by the National Asset Management Agency, or by a company referred to in section 616(1)(g),

and no arrangements are in existence by virtue of which the applicant company would fall within clause (I) or (II) in the period of 3 years following the issue of a certificate of commercial innovation,

(v) is a company—

(I) which exists wholly for the purpose of carrying on relevant trading activities, or

(II) whose business consists, or will consist, wholly of—

(A) the holding of shares or securities of, or the making of loans to, one or more qualifying subsidiaries of the company, or

(B) both the holding of such shares or securities or the making of such loans and the carrying on of relevant trading activities where relevant trading activities are carried on from a fixed place of business in the State,

and where a company raises any amount through the issue of eligible shares for the purposes of raising money for relevant trading activities which are being carried on by a qualifying subsidiary or which such a qualifying subsidiary intends to carry on, the amount so raised shall be used for the purpose of acquiring eligible shares in the qualifying subsidiary and for no other purpose,

(vi) is an innovative enterprise, and

(vii) is a company that it is reasonable to consider intends to, and has sufficient expertise and experience to, implement the business plan;

(b) each company that is a member of the relief group of which the applicant company is a member—

(i) is unlisted, and no arrangements are in existence in relation to the company becoming a listed company,

(ii) is not subject to an outstanding recovery order following a previous decision of the European Commission that declared an aid illegal and incompatible with the internal market, and

(iii) has all of its issued shares fully paid up;

(c) no company that is a member of the relief group of which the applicant company is a member has been registered, or where any company that is a member of the relief group was formed by way of merger no company that was party to the merger has been registered, more than 5 years prior to the date of the certificate of innovation issued under this section;

(d) the relief group of which the applicant company is a member—

(i) is an SME, and

(ii) is not an undertaking in difficulty.

(3) (a) Subject to paragraphs (b) and (c), the Revenue Commissioners shall issue—

(i) a certificate (in this Chapter referred to as a ‘certificate of going concern’) to a company where the company demonstrates to the satisfaction of the Revenue Commissioners that the relief group of which the applicant company is a member satisfies the conditions specified in subsection (2)(d), or

(ii) a determination that the applicant company has not demonstrated to the satisfaction of the Revenue Commissioners that the relief group of which the applicant company is a member satisfies the condition specified in paragraph (i) or (ii), as the case may be, of subsection (2)(d) and the reasons for the determination.

(b) The Revenue Commissioners may issue to the applicant company a certificate, or renewal of a certificate, of going concern, as the case may be, having taken account of any recommendations or report which Enterprise Ireland may make to the Revenue Commissioners following such consultation by them with Enterprise Ireland as they consider appropriate for those purposes (including by the provision to Enterprise Ireland of such information in relation to the application as is necessary for the purposes of such consultation).

(c) The Revenue Commissioners shall not issue a certificate, or a renewal of a certificate, of going concern, as the case may be, if they have reason to believe that any condition specified in subparagraphs (i) to (v) of paragraph (a), or paragraphs (b) and (c) of subsection (2) is not, or, in the case of the renewal of a certificate, is no longer, satisfied by the relief group or any company that is a member of the relief group, as the case may be.

(d) A person aggrieved by a determination issued under paragraph (a)(ii) may appeal the determination to the Appeal Commissioners, in accordance with section 949I, within the period of 30 days after the date of the notice of that determination.

(e) Where a company holds a valid certificate of commercial innovation but the certificate of going concern has expired or is about to expire, the company may apply to the Revenue Commissioners for a renewal of its certificate of going concern and the provisions of this section shall, with any necessary modifications, apply to an application for a renewal of a certificate of going concern as those provisions apply to an application for a certificate of going concern.

(f) A certificate of going concern shall be valid until the later of—

(i) the day which is 3 years from the date of registration of the first so registered company that is a member of the relief group, or, if earlier, where any company that is a member of the relief group was formed by way of merger, the day which is 3 years from the date of registration of any company that was party to the merger,

or

(ii) the earlier of—

(I) the last day of the accounting period, of the company to which the certificate was issued, in which that certificate was issued, or

(II) where the certificate was renewed in accordance with paragraph (e), the day on which the certificate of commercial innovation referred to in that paragraph ceases to be valid.

(4) (a) Subject to paragraphs (b) and (c), the Revenue Commissioners shall issue—

(i) a certificate (in this Chapter referred to as a ‘certificate of commercial innovation’) to a qualifying company where the company demonstrates to the satisfaction of the Revenue Commissioners that it satisfies the conditions specified in subparagraphs (vi) and (vii) of subsection (2)(a), or

(ii) a determination that the applicant company has not demonstrated to the satisfaction of the Revenue Commissioners that it satisfies the conditions specified in subparagraphs (vi) and (vii) of subsection (2)(a) and the reasons for the determination.

(b) The Revenue Commissioners may issue to the applicant company a certificate of commercial innovation having taken account of any recommendations or report which Enterprise Ireland may make to the Revenue Commissioners following such consultation by them with Enterprise Ireland as they consider appropriate for those purposes (including by the provision to Enterprise Ireland of such information in relation to the application as is necessary for the purposes of such consultation).

(c)(i) The Revenue Commissioners shall not issue a certificate of commercial innovation if they have reason to believe that any condition specified in paragraphs (a) to (d) of subsection (2) is not satisfied by the relief group of which the applicant company is a member, or any company that is a member of that relief group, as the case may be.

(ii) Where a certificate of commercial innovation is not issued because a condition specified in subparagraph (i) or (ii), as the case may be, of subsection (2)(d), is not satisfied, then the Revenue Commissioners shall issue a determination that the applicant company has not demonstrated to the satisfaction of the Revenue Commissioners that the relief group of which the applicant company is a member satisfies the condition concerned and the reasons for the determination.

(d) A person aggrieved by a determination issued under paragraph (a)(ii) or (c)(ii), as the case may be, may appeal the determination to the Appeal Commissioners, in accordance with section 949I, within the period of 30 days after the date of the notice of that determination.

(e) A certificate of commercial innovation shall be valid until the first date that is the fifth anniversary of the registration of any company that is a member of the relief group of which the applicant company is a member, or, if earlier, where any company that is a member of that relief group was formed by way of merger, the date that is the first date that is the fifth anniversary of the registration of any company that was party to the merger.

(5) Certificates of qualification shall include the following information:

(a) the type of certificate;

(b) the name, address and company registration number, or equivalent in the case of a company incorporated outside of the State, of the qualifying company to which the certificate was issued;

(c) the date of issue of the certificate;

(d) the period of validity of the certificate;

(e) a unique, sequential certificate identification number assigned to the certificate by the Revenue Commissioners.

(6) (a) The Revenue Commissioners shall establish and maintain a register of companies to which certificates of qualification have been issued (in this subsection referred to as the ‘register’).

(b) The Revenue Commissioners shall publish the register on a website maintained by them or on their behalf.

(c) The register shall contain only the following information specified in subsection (5) in respect of each certificate of qualification.

Subscription for shares

600G.(1) For the purposes of this Chapter, an individual subscribes for a share in a company if the individual subscribes for and is issued the share by the company—

(a) for consideration consisting wholly of cash,

(b) for bona fide commercial reasons and not as part of an arrangement that it is reasonable to consider the main purpose, or one of the main purposes, of such arrangement is to secure a tax advantage to any person, and

(c) by way of a bargain at arm’s length,

and references in this Chapter to ‘subscribes for’ shall be construed accordingly.

(2) In this Chapter, a share subscribed for, issued to, held by, or disposed of for, an individual by a nominee shall be treated for the purposes of this Chapter as subscribed for, issued to, held by, or disposed of by, the individual where the nominee has complied with the requirements of sections 892 and 894 in respect of the share.

(3) In this Chapter, references to an individual having subscribed for a share include the individual having subscribed for the share jointly with any other individual (and references to an individual holding a share or to a share being issued to an individual shall be construed accordingly).