John Paul Phelan (Fine Gael)

I move recommendation No. 1:

In page 3, before section 1, to insert the following new section:

"1.—(1) Section 92B of the Stamp Duties Consolidation Act 1999 is amended—

(a) by substituting the following for subsection (2):

"(2) Stamp duty shall not be chargeable under or by reference to paragraphs (2) to (6A) of the Heading 'CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance' or clauses (ii) to (vii) of paragraph (3)(a) of the Heading 'LEASE', as the case may be, in Schedule 1 on any instrument to which this section applies.",

(b) in subsection (3)—

(i) in paragraph (a) by substituting "first time purchaser," for "first time purchaser, or",

(ii) in paragraph (b) by substituting "during that period, and" for "during that period.",

and

(iii) by inserting the following after paragraph (b):

"(c) any instrument, executed on or after 1 January 2007 and on or before the date of the passing of the Finance (No. 2) Act 2007, that does not contain such a statement as is referred to in paragraph (a) or (b)—

(i) where—

(I) section 92 applies to that instrument, and

(II) the purchaser has complied with, and has undertaken to continue to be bound by, the conditions, liabilities and obligations under section 92 and has satisfied, or, as the case may be, undertaken to be bound by, the conditions (including the condition set out in such a statement as is referred to in paragraph (a) notwithstanding that the said instrument does not contain such a statement), liabilities and obligations referred to in this section,

or

(ii) where—

(I) had that instrument contained a statement such as is referred to in paragraph (b), such statement would have been true and correct, and

(II) the purchaser has satisfied, or, as the case may be, undertaken to be bound by, the conditions (including the conditions set out in such a statement as is referred to in paragraph (b) notwithstanding that the said instrument does not contain such a statement), liabilities and obligations referred to in this section.",

(c) in subsection (4)(a) by deleting "the difference between" and "and the amount of duty which was actually charged",

and

(d) by inserting the following after subsection (8):

"(9) Where, by virtue of the amendment of this section by the Finance (No. 2) Act 2007, an instrument is one in respect of which stamp duty is not chargeable under or by reference to any of the paragraphs or, as the case may be, clauses referred to in subsection (2), the Commissioners, on a claim being made to them in that behalf and on the conditions set out in subsection (10) being satisfied, shall cancel and repay such duty paid as would not have been charged had this section been so amended before the instrument was executed.

(10) The conditions required by this subsection are that the purchaser (in this subsection referred to as the 'claimant'), when making a claim for repayment, shall produce to the Commissioners—

(a) the stamped instrument,

(b) a declaration made in writing by the claimant, in such form as the Commissioners may specify, confirming to the satisfaction of the Commissioners that—

(i) where the instrument is one to which this section applies by virtue of paragraph (a) or (b) of subsection (3), the claimant has complied with the conditions, liabilities and obligations under either or both this section and section 92, as the case may be, and has undertaken to continue to be bound by those conditions, liabilities and obligations,

(ii) where the instrument is one to which subsection (3)(c)(i) applies, the claimant has complied with, and has undertaken to continue to be bound by, the conditions, liabilities and obligations under section 92 and has satisfied, or, as the case may be, undertaken to be bound by, the conditions (including the condition set out in such a statement as is referred to in paragraph (a) of that subsection notwithstanding that the said instrument does not contain such a statement), liabilities and obligations referred to in this section, or

(iii) where the instrument is one to which subsection (3)(c)(ii) applies, the claimant has satisfied, or, as the case may be, undertaken to be bound by, the conditions (including the conditions set out in such a statement as is referred to in paragraph (b) of that subsection notwithstanding that the said instrument does not contain such a statement), liabilities and obligations referred to in this section,

and

(c) such information as the Commissioners may reasonably require for the purposes of this subsection.

(11) A reference in subsection (3)(c) or subsection (10) to the purchaser, shall be construed as including a reference, where there is more than one purchaser, to each and every one of the purchasers.".

(2) This section applies as respects instruments executed on or after 1 January 2007.",".

Recommendation No. 1 covers the same area as the other two recommendations mentioned by the Cathaoirleach. It seeks to move the retrospection of this legislation back from 31 March to 1 January 2007, which is closest to the date on which the Minister made his comments in the other House. I do not have his comments in front of me but I was in the Chamber at the time and there was certainly a clear inference that there would be no change to the stamp duty regime. I understand Senator O'Toole outlined a case he was presented with. My colleague in the other House, Deputy Bruton, was presented with a number of similar cases involving people who took the Minister at his word when he said there would be no changes in the stamp duty regime, entered into the property market and have found themselves at significant financial disadvantage because of the changes proposed in this Bill and the deadline included in the Bill by the Minister.

The Minister is correct in saying that no matter what deadline one picks, there will always be people on the wrong side of it who will not benefit from it and will in fact be penalised by it. That is happening in this case. It would be fair, equitable and appropriate for the Minister to take this recommendation on board and change the date of retrospection back to a date as close as possible to his budget speech when the confusing comments were made regarding prospective changes to the area of stamp duty.