Thursday, 17 December 2020
Saincheisteanna Tráthúla - Topical Issue Debate
Covid-19 Pandemic Supports
Gabhaim buíochas leis an Leas-Cheann Comhairle. Is cúis aiféala dom nach raibh mé anseo nuair a thosaigh sí. Ag casadh le seanchara de do chuidse a bhí mé, an t-iarTheachta O'Sullivan.
Shortly after the Covid restrictions support scheme, CRSS, was announced, guidelines were issued on 3 November for the scheme. Based on these guidelines many businesses applied for the scheme and spent time and money preparing applications. In early December many of these businesses which were badly hit by the restrictions the Government brought in, both in the spring and in the autumn, effectively closing the businesses, were stunned to receive letters of refusal based on new guidelines published on 4 December. In the guidelines issued on 3 November the relevant condition of eligibility was, "...the company, self-employed individual or partnership carries on a trade or trading activities from a business premises located wholly within a region of the country for which restrictions announced by the Government to combat the effect of Covid-19 are in operation".
Furthermore, the regulations of 3 November go on to clearly define what a business premises is as follows:
For the purposes of the CRSS, a business premises is the building, or similar fixed physical structure, in which a business activity is ordinarily carried on. Mobile premises, or premises which are not permanently fixed in place, do not meet the definition of business premises...Examples of what would not meet the definition of a business premises for these purposes ... include ... taxis, vans, trucks or similar vehicles ... stalls such as market stalls or trade fair stalls ... [and] circuses or fun fairs which are not permanently in place.
On 4 December new guidelines were issued with major changes in the definition of a business premises. This is summed up in the sentence:
‘Ordinarily carried on’ from a business premises requires that the business activity takes place in the business premises. However, it is accepted that a minor element of the activity may take place outdoors, for example a restaurant with an outdoor seating area connected to, or adjacent to, the restaurant.
This new definition excludes outdoor activities, even if the tickets are purchased in a building on the basis that the activity is carried on outdoors. The guidelines then exclude such activities as: outdoor theme and amusement parks; commercial visitor farms; camping and caravan sites; commercial gardens and commercial parks; outdoor activity centres, for example paintballing, go karting, ziplining; golf courses, pitch and putt courses and driving ranges; clay-pigeon shooting; outdoor water sport centres; and bus tours/bike tours. I understand that even boats such as the Jeanie Johnsonand the MV Cill Airneright outside the door which never move and are fixed restaurants in a fixed place are considered to be excluded.
Two principles arise here. The first is the principle that an application can only be judged and the rule enforced on the day of application. I therefore contend that all applications received before 4 December should be adjudicated on the guidelines of 3 November.
The second issue is why did the rules change? These excluded businesses suffered as significant losses due to Covid-19 restrictions as the now post 4 December eligible businesses. As to one of these businesses, I am certain the Ombudsman would have something to say about this sharp practice which could leave serious egg on the face of the Department and of Revenue. There is no point in telling me that these are only guidelines. All of the directions from Revenue as far as I understand are called guidelines but that does not mean that it was not the rulebook at the time and that the Government rewrote the rulebook post factumafter these applications were in. I have no problems with applications after 4 December. I do not know why the Government did this. It is small-minded but I can understand the logic before 4 December. I call on the Government to judge these applications on the guidelines that it published.
I thank the Deputy for raising this issue and hopefully the debate will help clarify some of the issues raised by him which have caused legitimate confusion earlier on in the scheme. The CRSS is a targeted support for businesses significantly impacted by restrictions introduced by the Government under public health regulations to combat the effects of the Covid-19 pandemic. The support is available to companies, self-employed individuals and partnerships who carry on a trade or trading activities, the profits from which are chargeable to tax under Case I Schedule D, from a business premises located in a region subject to restrictions introduced in line with the Resilience and Recovery 2020-2021: Plan for Living with COVID-19.
To be eligible to make a claim under CRSS, a business must, under the specific terms of the regulations, be required to either prohibit, or significantly restrict customers from accessing its business premises to purchase goods or services with the result that during the period of restrictions, turnover does not exceed an amount based on 25% of the average weekly turnover of the business in 2019, or in 2020, in the few case of a new business.
The legislative basis for CRSS is section 11 of the Finance Act 2020, which was finalised through the Oireachtas the day before yesterday. Revenue is administering the scheme and has published detailed guidelines on its operation which are available on the website. The guidelines are based on the terms and conditions of the scheme which are set out in the legislation. The purpose of the guidelines is to assist businesses in understanding the scope of the scheme and assessing their eligibility to make a claim. The guidelines published on 4 December are an update to previous guidelines, in order to address common queries and issues raised by taxpayers in respect to eligible businesses, how to make a claim and also to reflect the recent announcement of the "restart week" available to businesses which have recommenced on the lifting of the Covid-19 restrictions.
I can be clear that this update did not introduce new conditionality to the CRSS. There can be no question as to a business that was previously eligible becoming ineligible after the publication on 4 December of the updated guidelines. Therefore, it is not a question of which set of guidelines should apply. When the original guidelines were issued, many businesses contacted the Revenue Commissioners for clarification, and the clarification may not have been clear. The Government issued more amplified guidelines, none of which changed the original rules. Rather, they provided additional information for potential applicants.
The scheme commenced with effect from 13 October 2020 and is in place until 31 March 2021. It operates on a self-assessment basis. A person registering his or her details and the details of his or her business activity for the purpose of making a claim should retain evidence supporting the basis for making a claim under the scheme. Where a person's application or claim is selected for verification by the Revenue Commissioners, the latter will request such evidence to verify that person's entitlement to make a claim under the scheme. It is appropriate for the Revenue Commissioners to issue clarification to assist businesses in assessing their eligibility. This is preferable to businesses wrongly making claims for payments that have to be repaid subsequently.
The new guidelines were issued for clarification purposes in order that people would be clear about whether they were eligible. It was not to put businesses through a process of making an application for a payment for which they were not eligible. The Revenue clarification made it very clear in advance. Where people have already submitted applications, the Revenue Commissioners felt it would be beneficial to provide further clarification, but no amendments. What was issued was just an amplification to help potential applicants in order that they would not make a claim if they were not eligible in the first place and so that if they did make a claim, they would not be found, at a later date in an Revenue audit, to not have been entitled to have done so, potentially requiring repayment.
That is one of the most fantastic "Alice in Wonderland" scripts I have ever heard. Changing the rules is now defined in the new Eurospeak as clarification. The rules were very clear. Unfortunately, people will have to pursue this on the basis of what the rules were when they applied. I have no problem with somebody realising a scheme is not to his or her liking and deciding to change the rules. That is perfectly legitimate. Departments do that all the time but the rule is that it cannot be done post factum. In other words, the rules that apply on the day one applies are the rules that apply. There is no point in pointing to the Finance Act, for two reasons. The Act is moot on the point we are discussing, namely, that of the businesses excluded. Second, it is post factumas well. The scheme was introduced and the applications were submitted before the law became law. Therefore, how could the scheme have been introduced before the will of the Oireachtas was known? The Government cannot presume on what the Oireachtas will do. The Minister of State might remember that, in the term of the last Dail, a famous Bill was introduced that was to amalgamate Galway city and county councils but the Oireachtas decided the Government could not do it. It is a presumption for the Government, if it did not have the administrative ability to introduce the scheme, to introduce it on the assumption that the Oireachtas would bring in a law to honour the commitment it had given to the people in the budget.
I call on the Minister of State to save everybody the time involved in proceeding to litigation on this issue, if they must do so, admit the position on those applications submitted under the old scheme and stop the "Alice in Wonderland" talk about clarifying. What was meant was perfectly clear to everybody except the Department of Finance. There was a very precise written document. The Government should pay those who applied to the scheme on time and admit that it had to change the rules because it did not intend for their applications to be included.
By way of information, so the public watching will be aware of the current position, up to yesterday 15,000 businesses had registered for the scheme, covering 17,900 premises. A total of 2,400 new applications have been received in the past day or so. Claims totalling €111.6 million in respect of 15,300 premises have been received, and €110 million has already been processed for payment. Therefore, the rate of payment processing in respect of valid applications is 99%.
The Deputy mentioned the possibility of re-examining this matter without litigation or going to the Ombudsman. The Deputy will have to take clear note of my position because this is a taxation measure in relation to an advanced credit in respect of trading expenses. It is very much a financial measure and a taxation measure. Owing to that, the legislation states specifically that appeals concerning the Revenue Commissioners in respect of a tax matter must go to the Tax Appeals Commission rather than the Ombudsman. Issues of processing and administration may be matters for the Ombudsman but a query on the underlying tax credit that may be available is a matter for the Tax Appeals Commission, as set out in the legislation. This can involve a more cumbersome process than that involving the Ombudsman.
The regulations made very clear all along the position on business premises and access thereto. Let me make it very simple: that there happens to be a premises on a site where there is outdoor activity that is generating income does not allow for the inclusion of that outdoor activity under the CRSS. It is only revenue from activities in the premises, such as from a shop or café, that can come under the CRSS. The outdoor activities that are not carried on in a premises are not eligible, even though it is the one business.