Tuesday, 19 July 2011
Finance (No. 3) Bill: Committee and Remaining Stages
I move recommendation No. 1:
In page 4, to delete lines 4 to 7 and substitute the following:
"(2) A civil partner shall be treated for income tax purposes as living with his or her civil partner unless they are in fact separated and in such circumstances that the separation is likely to be permanent.".
The general intention of this recommendation is the same as the other recommendations I, along with my colleagues, have proposed - to ensure the Bill provides the same tax treatment for civil partners as that of married couples under all tax categories and that the children of civil partners are afforded the same treatment as children of a married couple. On Committee Stage, the Minister of State, Deputy Brian Hayes, said that registered civil partners will receive the same tax treatment as married couples in respect of income tax, stamp duty, capital acquisitions tax, capital gains tax and VAT. The Oireachtas Library and Research Service Bills Digest says this Bill gives civil partners an equal treatment to married couples regarding tax, that the Bill amends tax legislation to provide that civil partners will be treated with equal status to married partners in tax affairs and that a child of civil partners is given equivalent tax treatment to a child of a married couple.
In light of comments by Senators on the Bill, the Minister of State emphatically declared that civil partnership is not marriage because it cannot be marriage, a point with which I am wholeheartedly in agreement. My recommendations do not seek to push the institution of civil partnership any closer to marriage. On Committee Stage, I expressed the view that the institution of civil partnership will never represent equality for same-sex couples so there is no need to fix it in this regard.
By way of a tangential point to my recommendation, I wish to respond to the declarations by the Minister of State on Committee Stage. He stated three times during the debate that the only way marriage can be changed under our constitutional architecture is by constitutional referendum. In the first instance of declaring this he referred to the case of Zappone and Gilligan v Revenue Commissioners, which is still before the courts. I am that Zappone. An appeal was lodged to the Supreme Court in early 2007 and we are still awaiting a date. In light of the fact that there will ultimately be a Supreme Court judgment on the case, it is too soon to argue that the only way marriage will be extended to same-sex couples is through a constitutional referendum of the people.
I note, too, that on Second Stage a majority of Senators were in agreement with the comments I made and concerns I raised and the need to amend the Bill in certain instances, which is what is behind the recommendations I am putting forward, along with my colleagues. Those recommendations focus solely on the Taxes Consolidation Act to ensure equal protection to registered civil partners and to their children when that civil partnership breaks down.
I note also the comments of Senator Mullen on Committee Stage and offer him the same respect he offers me. It is the only way to do our business here. I must add that my views are also rooted in an ethical concern for the good of the common and that the common is good when it affirms the diversity of human identity in its entirety.
The more specific intention of the first recommendation is to bring the definition of "civil partners" living together and separated in line with that of married couples. If this recommendation is accepted or if the Minister considers it, it will mean that civil partners, like married couples, may be separated, thereby considered separated for tax purposes, but still living under the same roof. As I outlined on Second Stage, there may be instances whereby, in light of difficult financial circumstances, civil partners whose relationship has broken down cannot maintain two separate dwellings and are effectively forced to live together.
I note that tax law must follow general law - the Minister of State, Deputy Brian Hayes, referred to that in his response to me - and therefore this Bill must not go against the Civil Partnership and Certain Rights and Obligations of Cohabitants Act. It is correct to note that the civil partnership Act does not expressly provide for a judicial separation. It only provides for dissolution and annulment. However, having read the Act again there does not appear to be anything within that Act that prevents a deed of separation or a separation agreement between civil partners. There is an implicit recognition in the Act that civil partners can be separate. Section 127(3) of the Act requires the court to have regard to separation agreements in considering the making of a post-dissolution order. I am arguing, therefore, that there seems to be no impediment in the Act that couples are recognised as separated for taxation purposes. In this recommendation they can be recognised as separated for taxation purposes while still living under the same roof as married couples.
I consider that we are very lucky to have someone of the standing of Senator Zappone to make the detailed, considered, thoughtful and authoritative statement on this matter. I support every word she said and amplify it slightly.
The first point is with regard to constitutionality. That is simply a ruse, and everybody knows that. The Law Reform Commission took advice on that and it was advised by eminent counsel that there was no difficulty about introducing the full range of marriage unless the new institutions, right up to the level of marriage, purported to give greater rights. Giving equal rights did not; that was the opinion of learned counsel.
Second, the Minister's own late distinguished colleague, Declan Costello, pointed out in 1967 that the wording of the Constitution clearly left it open to the introduction of marriage between persons of the same sex. I am quoting one of the most eminent members of the Minister's own party on that. Those two references on their own should at least open up a discussion on this matter.
With regard to the undermining of marriage, it was a laughable argument because surely the best allies that marriage could possibly have are people who want to commit themselves. I refer the Minister to what I said during the debate on the civil partnership Bill, and it was not just uninformed opinion of my own but reports of various governments in the Scandinavian region, particularly the Swedish Parliament, which commissioned academic research into this area. It discovered that this was a helpful direction in which to go. It was unusually conservative at the beginning. In the aftermath of the measures it passed in the Parliament, it was discovered there was actually an increase in marriage. This is because heterosexual couples within a certain social circle who saw their same-sex couple friends getting married actually believed it would be a good idea to get married themselves. Not only does same-sex marriage not undermine marriage, it actually supports it and leads to an increase in the incidence thereof. These are not my opinions but facts, and they should be treated as such.
The Civil Partnership Bill was a considerable advance and for that reason I reluctantly supported it, despite its deeply offensive and most unhelpful language. For example, in references to the domestic arrangements of people in civil partnerships, a distinction was drawn between persons of different sexes and persons of the same sex in references to the place in which they lived. In the case of same-sex couples, the residence was described merely as a shared home or shared accommodation whereas it was described as the family home in reference to people of opposite sexes, even those in civil partnerships. That is grossly offensive to gay people. No consideration whatever was given to the welfare of children. I would have believed, given the history of child abuse by both the religious and State institutions, that any Government would be very careful not to continue the abuse of children achieved by the legislation. I looked to the Government to amend it.
There seems to be a block with regard to retrospection. I raised this on many occasions in this House. In this regard, consider the circumstances of people I know who are now in recognised civil partnerships or at least in partly recognised civil partnerships - there seems to be a lot of confusion about this. One couple got married in the British embassy in Dublin but there appears to be no retrospection in terms of their pension arrangements. This is an unjust discrimination.
Let me draw attention again to the remarkable and wonderful words made by Máire Geoghegan-Quinn as Minister for Justice when mean-minded amendments were introduced by the then Opposition in order to humiliate gay people and put in place a discriminatory age of consent. She said - this is the golden mean - that she would require clear, factual and cogent reasons to introduce any measure of discrimination against an Irish citizen, and that since none had been provided, she would not accept the amendments. That is a very important statement because it relates not only to the infringement of the rights of gay citizens in this country, but also to every area of discrimination. No Irish Minister should accept a measure of discrimination unless clear, cogent and factual reasons have been produced. I do not refer to financial reasons, moral objections of one kind or another or personal ideas but to clear, cogent and factual reasons. For that reason, I have great pleasure in supporting the recommendation tabled by Senator Zappone.
I welcome the Minister, Deputy Michael Noonan, to the House. We all very much welcome this Bill. It was very evident on Second Stage how much support there is for it across the floor of the House. It is clearly designed to give effect to the commitments in the programme for Government following from the passing of the civil partnership legislation. We all very much welcome that. On Second Stage, Senator Zappone put forward some very constructive and useful proposals as to how relatively minor amendments might be made.
This recommendation is one that may deserve further consideration given that it would, if accepted, make very little change to section 1. It simply proposes to change "in fact living separately and apart" to "in fact separated". Has the Minister had an opportunity to review that and consider whether the current wording is the best means of describing what is intended?
I thank Senators for their contributions and very cogent arguments. This is text legislation that is consequent on the primary legislation introduced by my predecessor, namely, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. It is not possible for me to accept the recommendation because I cannot go beyond the scope of the original legislation. If I understand the recommendation correctly, it seeks to define the status of separation for civil partners within the tax law. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 does not provide for a status of separation in the same manner as exists for married couples. The tax legislation cannot make provision for something that is not in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and as such cannot create the status of a separated civil partner.
The legislation before the House already provides that a civil partner shall be treated for income tax purposes as living with his or her civil partner unless they are living separately and apart in circumstances where reconciliation is unlikely. The recommendation, as proposed, relies on a civil partner being of the status of separated. As we have established, this status does not exist for civil partners in the general law. As such, I do not see that this recommendation could be implemented and therefore cannot accept it.
I thank the Minister for his response. In the recommendation I was trying to put forward two items. The first is the suggestion that in the civil partnership legislation there is no absolute negation of the possibility of a voluntary agreement between civil partners for separation. It does not seem to be contained in the Act. It is true to state there is no allowance for judicial separation but this is not to state there is no possibility of implicit recognition of some form of voluntary or deed of separation. On this basis, I am trying to argue that perhaps this recommendation could be accepted.
The second is that if the recommendation is not accepted, should partnerships break down and partners separate prior to the time that must pass for the partnership to be dissolved or annulled but because of financial circumstances they are required to live together, they will not be enabled to have the same favourable tax treatment as married couples as the law stands. It is sad to state this because we are only beginning to witness a number of couples registering civil partnerships. If the recommendation is not accepted it is important to note that in this instance there will not be the same treatment for civil partners as for married couples.
I move recommendation No. 2:
In page 16, to delete lines 16 to 20 and substitute the following:
" 'maintenance arrangement' means an order of a court under Part 5 or 12 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, a rule of court, deed of separation, trust, covenant, agreement, arrangement or any other act giving rise to a legally enforceable obligation and made or done so in consideration or in consequence of (a) the dissolution or annulment of a civil partnership, or (b) such separation of the parties to a civil partnership as is referred to in section 1013A(2), and a maintenance arrangement relates to the civil partnership in consideration or in consequence of the dissolution or annulment of which, or of the separation of the parties to which, the maintenance arrangement was made or arises;".
I thank the Minister for his patience. This is my first experience of proposing recommendations and I am learning as I go. I also appreciate the context.
The intention of the recommendation is to extend the definition of maintenance arrangements for civil partners covered by the Bill. In the proposed section 1013 J to be inserted in the Taxes Consolidation Act 1997 which is contained in the Bill as it stands, "maintenance arrangement" means an order of the court giving rise to a legally enforceable obligation. The maintenance arrangement refers only to that which is contained in an order of the court. The proposed recommendation extends the definition to include a maintenance arrangement that comes about by a deed of separation or a separation agreement between civil partners. I am putting forward a similar argument that the definition needs be extended to include a deed of separation to ensure equal treatment between civil partners and a married couple. As I pointed out on Second Stage, maintenance payments for a spouse in marriage attract tax relief at the time of a deed of separation or a judicial separation. In the case of civil partners, tax relief is not a possibility on maintenance payments until a statutory dissolution or an annulment. This takes considerably longer than the time it takes for a deed or an agreement of separation.
There exists in the Civil Partnership and Certain Rights of Cohabitants Act 2010 an implicit recognition that civil partners can be separate. I acknowledge the Minister's comments in this regard but I still believe, on the basis of advice I have received, that this may be the case and, therefore, it would seem there is no impediment within the Act to extend the definition of a "maintenance arrangement" to include that which arises by deed of separation and that these arrangements are legally enforceable.
An agreement providing for separation of married couples is typically enforceable. There is no reason to believe that a court would fail to enforce such an agreement between civil partners. In particular, there is no obvious public policy ground for the non-enforcement of such an agreement. Section 47 of the civil partnership Act allows the maintenance provision of such a separation agreement to be adopted as a rule of court. This allows the provisions of that agreement relating to maintenance to be enforced as if they were orders made by the court itself.
I ask the Minister to consider this recommendation in order that civil partners may avail of tax relief on maintenance payments for a civil partner at the time of separation.
Will the Minister provide further clarification? The Bill, as drafted, could be flawed in that it does not define "living separately" and "separated". If a provision for a separation or civil partnership can be made, surely there must be facility if a case ever went to the courts to grant a separation for a civil partnership. Would it be possible to amend this legislation without affecting the civil partnership Act, given this deals with the financial aspect? It is how the citizens are treated that matters in the context of equality rather than the terminology and definitions of "living separately" and "separated".
I refer to the Minister's response to the previous recommendation and his point, clearly correct in law, that the status of separation does not exist for civil partners. Senator Zappone is correct to point out that this means there is no parity between civil partners and spouses. However, is judicial separation a desirable process? That we have such a developed law on judicial separation is a consequence of the fact that we did not have divorce in this country for so long and separation was seen as filling a gap that would have been unnecessary had divorce been introduced earlier than 1995 following a referendum. Like Senator Zappone, I feel we should give effect to same sex marriage and the civil partnership Act did not go far enough. I rehearsed the argument when we debated the legislation in the House and, while I welcomed it, it does not provide for full equality.
I wonder whether separation is an equality principle that is desirable to seek, given married couples can still seek judicial separation. Is it necessary for us to provide this for civil partners? I acknowledge what Senator Zappone is trying to do with these recommendations. I am not sure it would be a positive gain in practice for civil partners to have a mechanism inserted into the civil partnership Act that would allow for separation for civil partners along the same lines as that available for married couples.
I thank Senators for their contributions and, in particular, Senator Zappone for her cogent arguments. She is on better ground with this recommendation than on the previous one. She may have identified a measure in tax law available to married couples but which has not been extended to persons in civil partnerships.
This recommendation seeks to extend the definition of maintenance agreements for tax purposes beyond those made by court order or on the dissolution of a civil partnership. More specifically, the recommendation seeks to have maintenance agreements made as part of a legally binding contract between two civil partners recognised for tax purposes.
I see what Senator Zappone is trying to achieve with this recommendation. There will exist a period between the breakdown of a relationship and the legal dissolution of a civil partnership. Solutions often need to be put in place during that time to protect both partners. Civil partners can offer a maintenance order from the courts during the period before dissolution. This option is perfectly suitable in most cases.
However, in marriages, there is also the option of a deed of separation. Both sides can sign up to it and the maintenance agreements which may form this deed are recognised in tax law. Senator Zappone has identified the disparity of treatment in that civil partners have the option to enter into a similar agreement but the maintenance payments are not recognised in tax law unless the agreement is made a rule of court.
This Bill is complex and crosses several areas of existing law. For this reason, I am reluctant to rush to amend the legislation without further assessing all possible consequences. It is for that reason I cannot accept the recommendation today. I will instruct my officials, however, to engage with the Revenue Commissioners, the Office of the Attorney General and the Department of Justice and Equality to examine the issues identified by the Senator. If they find this is an issue which can only be rectified by amending legislation, I will consider it in the next finance Bill
I appreciate the Minister's response. At a personal level, for those who have to go through the angst and grave disappointment of a relationship breakdown, it must be difficult to know their arrangements are not recognised in the same way as those in marriage are. I accept Senator Bacik's point it may be necessary to examine the legislation.
The Minister has identified Senator Zappone's issue. Equality is not always happiness; sometimes there can be unhappiness. I was shocked by Senator Bacik's remarks that we should not provide for separation because it would not be a good story on equality.
This recommendation refers to deeds of separation trusts, etc. as well. If the Department has recognised Senator Zappone has raised a legitimate issue and she has provided the wording to an amendment, then it is the job of the Seanad to amend the legislation accordingly. If this amendment will provide equality to civil partners in this area, why can it not be accepted now? It has been made in good faith and has been identified by the Department as necessary. We must now wait until the next finance Bill. Senator Zappone may not be aware that the Bill gives effect to the budget and will not be introduced until February or March 2012. If that is the case, we have to wait that long for equality. I urge the Minister to accept the recommendation and, failing that, I urge Senator Zappone to press it.
I pay tribute to Senator Zappone. It is welcome that the Minister has accepted that the recommendation raises an issue which needs to be addressed. I apologise for going off on a tangent about the judicial separation regime, which is a different issue, albeit one which I always considered to be a feature of the absence of divorce in this country. It is important that we ensure individuals are covered in the period where there has not, as yet, been a formal dissolution of the civil partnership under the 2010 Act. This important principle is at issue in the recommendation proposed by Senator Zappone. It would be useful if the recommendation were adopted or at least reviewed with a view to adoption before December. I await the Minister's comments on the matter.
I thank the Minister for his response given that he is in theory accepting Senator Zappone's argument. I share other Senators' view that the devil can be in the detail of legislation. I would like to have the recommendations of the Attorney General, Department of Finance, Taxing Master and others before making a final decision on the matter. As I stated previously, the tax element should be separated and the Minister's decision is a wise one. I do not want to return to the civil partnership Act. How soon will the next finance Bill be introduced? Will it be in December? When one considers for how many years equality has been denied, December is not too far down the road. While I would welcome a decision to act more speedily in the matter, the Minister is taking a sensible route.
Cuirim fáilte roimh an Aire go dtí an Teach agus tá súil agam go n-éireoidh leis ina chuid oibre. I seek clarification regarding the timescale. The Minister indicated he would seek the advice of his Department, the Office of the Attorney General and the Department of Justice and Equality. Will this take two months, six months or longer? Is it possible the advice may not be available before the next finance Bill is introduced? Senators need clarification before we can consider the Minister's response to the recommendation.
My position is that Senator Zappone has made a cogent argument and identified an issue which requires examination. I am not 100% sure whether she is absolutely correct in law but it appears that if married couples can go to their solicitor and obtain a non-judicial separation by agreement and receive certain tax benefits from such an arrangement, the same should apply to persons who are separated and have been in a legal civil partnership. Two issues run from this. There is the principal issue of parity, which is the one I would like to deal with and should be dealt with as soon as we can properly do so, having received the best of advice, and the issue of whether any practical implication arises from this for any separated couple who were in a civil partnership. As yet, this does not appear to be the case although such practical implications may arise in future.
In terms of dealing with the particular problem of individuals we do not have to proceed in haste because we are not correcting anything in the lives of citizens. However, in terms of parity we obviously want everything that was in the primary legislation to be reflected in the consequential tax legislation. There is considerable merit in the arguments made by Senator Zappone and while I am not 100% sure whether she is fully correct, the matter requires further examination by the Office of the Attorney General. If her office concludes that Senator Zappone has identified a provision that makes persons in civil partnerships who separate different in tax law from married couples, I will move to amend the provision in the finance Bill. The finance Bill is a natural consequence of the budget. It will be published next February and will be enacted in the following five or six weeks. If there were a practical example of people suffering consequences as a result of this measure we could think of moving sooner, but I am not 100% certain whether the arguments are fully correct. It seems that they are. There is certainly sufficient merit in the Senator's argument for me to instruct the Attorney General to examine it and to reference it to the other relevant Departments. I will proceed on that basis if that is acceptable.
I appreciate the comments made by Senators Byrne, Keane and Mac Conghail. The Minister's response is sufficient, especially in terms of clarifying the matter from Senator Mac Conghail's perspective. In practice, there are not civil partners currently that this will affect because they are just registering their partnerships and we do not have any such partnerships that are breaking down. I appreciate the Minister's willingness to instruct the Attorney General. We will wait in hope for a positive resolution in that regard.
I move recommendation No. 3:
In page 16, between lines 22 and 23, to insert the following:
"a reference to a child of a person includes a child in respect of whom the person was at any time before the making of the maintenance arrangement concerned entitled to relief under section 465(1).".
That is a great idea. There are a lot of words and I have received support and advice in putting the recommendations to the Minister. Effectively, the intention behind all three recommendations is to include reference to the children of civil partners with respect to maintenance arrangements for taxation purposes. That is as simply as I can put it. There is no reference to children in the Bill when maintenance arrangements are being defined for taxation purposes.
Recommendation No. 3 is a technical provision which attempts to mirror an equivalent provision for married couples. It provides for certain dependent children to be taken into account where a tax credit is claimed in that regard under section 465 but where they may not be the person's child. For example, they may be acting as a guardian of the child. Effectively, if they were entitled to tax relief for the child prior to the maintenance arrangements for the child then they are still entitled to the relief after maintenance arrangements. That is what the amendment seeks to do.
Recommendations Nos. 4 and 5 again seek to include express reference to payments made in respect of children within the context of maintenance arrangements, and that these give rise to legally enforceable obligations. In recommendation No. 4 specifically the words we propose include reference to payments made to children. The intention of the recommendation is simply to mirror equivalence between how maintenance payments for children of married couples and children of civil partners are treated for taxation purposes. The intention is to mirror the language in the tax code.
On Committee Stage I noted that the Civil Partnership Act does not place an obligation on civil partners to maintain the child or children of their civil partner in the case of a breakdown. Theoretically, that means that a civil partnership may be dissolved in circumstances where a child of either party may be financially disadvantaged as a result. The absence of recognition of rights and responsibilities for children of civil partners was noted as a prime lacuna of the Civil Partnership Act by Senator Bacik in her comments on Committee Stage and also the historical debates on the Civil Partnership Bill itself. I just bring that to the fore again. However, after the breakdown of a civil partnership happens and if there are maintenance arrangements for children that become part of a voluntary commitment on separation or could become part of a legally binding agreement made in court then should that not be enforceable within taxation law? The recommendation seeks to provide for the same taxation treatment for maintenance arrangements for children of civil partners as applies to children of married couples.
Recommendation No. 5 proposes the insertion of a new section in order to mirror the tax treatment of payments for the maintenance of children of civil partners to that of children of married couples. Maintenance payments to children of married couples are disregarded for tax purposes. The intention of the recommendation is to include a provision in taxation legislation that maintenance payments to children of civil partners are also disregarded for taxation purposes. The recommendation is lengthy, mirroring the length of the provisions within the income tax code legislation on this issue. Whatever the rationale was behind those provisions, I am simply proposing that the same rationale be applied in respect of the children of civil partners.
I am grateful to Senator Katherine Zappone for raising this issue. The absence of protections for children in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was raised by me, Senator Norris and others in this and the other House during the debate on that legislation. The Ombudsman for Children published a robust critique of the absence of protection for children in the civil partnership code. There were only two references to children in the Act.
The recommendations put forward by Senator Zappone address a gap in protection for children and highlight that the provisions in the civil partnership code do not go far enough. Section 73 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides for certain succession rights of children of a civil partner, while section 129 allows a court to have regard, on the dissolution of a partnership, to a child to whom either civil partner owes an obligation of support. However, there is nothing in the legislation to address the gap identified by Senator Zappone in terms of the lack of parity in the treatment of maintenance payments to children of married couples following divorce as against the children of civil partnerships following dissolution.
I urge the Minister to consider how this gap can be addressed. I said on Second Stage in the debate on this Bill that further legislation is necessary in any case to deal more broadly with the rights and responsibilities of civil partners vis-À-vis the children of their families. This was an issue identified by many people during the debate on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. There are broader issues to address apart from the issue raised in Senator Zappone's recommendations. It will require further legislation to equate the position of children of civil partners with those of married couples. Senator Zappone would accept that her recommendations will not achieve parity between children of gay couples and children of married couples. However, the recommendations do address a particular disparity in treatment.
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.
I respect the reasons the Minister put forward. I also accept that there ought not to be tax relief and that parents ought to look after their children. With regard to the Minister's response, let it go forth from this Chamber that there is no express reference to children in this Bill in the context of maintenance arrangements. That is effectively what the Minister said. I understand the reasons for that, and I am sorry for those reasons. That is what the Minister said, that there is no reference to children in this Bill in terms of maintenance orders.
It is clear that the flaw lies with the original Bill and the absence of a reference to children there. This is a tax measure and I accept the Minister's point that perhaps the changes proposed to provide for parity between children of civil partners and children of married couples go beyond the scope of a tax Bill. That is in line with the general principle, but it is disappointing that provision cannot be made to a greater extent for children of civil partners. As I said earlier, we need general, standalone legislation, not tax legislation, presumably from the Department of Justice and Equality, to provide for parity of treatment for children of civil partners generally. That is the legislation for which we should strive, and we will do that as best we can. That is probably the answer to this.
I listened to Senator Zappone but it is not today that it went forth from this Chamber that children of civil partners were treated differently, but the day the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill was passed. As we are dealing with a finance Bill today, the Minister's hands are tied. Rather than this Minister putting out a new message, it is an old message that Senator Zappone is enunciating today. It was a flaw in the previous Bill. The recommendation refers to a civil partner pursuant to a maintenance arrangement. It is a good recommendation but, as the Minister has outlined, it is not possible to amend the Finance Act because of the civil partnership legislation. The avenue that should be examined is the amendment of the civil partnership legislation. Perhaps that could be considered before the Finance Bill next February.
Let it go forth from this Chamber that the purpose of this legislation is to provide equality of treatment under the law to persons who are in civil partnership and to their children. There is no tax relief for the payment of maintenance for children when marriages break down. There is tax relief in respect of incapacitated children, and that tax relief is being applied equally to the children of civil partners and the children of married couples. There is no tax relief for other maintenance payments in either circumstance. I do not see where there is inequality. I accept there are several other issues but it is not fair, in declaratory statements, to import the other issues into tax legislation which everybody knows must be confined by the primary legislation. What I am pledged to do is to mirror every rule across the tax code which applies to married couples in the treatment of persons who have entered into civil partnership and to their children. I do not see where there is discrimination against children in this. If there is, I would be grateful if it was pointed out to me.
There is no provision in tax law for receiving a tax break for maintenance payments for children. There is a provision for a tax break for incapacitated children, but we are legislating to apply that to a child in a civil partnership in the same way as it applies to a child in a marriage.
I appreciate what the Minister is saying. The Minister is right - it is a question of fairness, and that is where my arguments originate. Second, I understand the points made by the Minister. There is no taxation implication and there is no tax relief. If there is not and it is not that big a deal, why can we not include it in a Bill when there is not that implication in terms of public expenditure? Even if there were, I would argue that it ought to be there. However, I respect the Minister's points so I will withdraw the recommendations.
This section deals with the taxation treatment of civil partnerships, in particular, Chapter 1, Part 44A, which deals with income tax. I invite the Minister to repeat the Government's commitment not to raise income tax rates in the budget, in particular for civil partnerships. However, I presume that will apply to everybody in terms of equality of treatment.
The Minister has refused to do so. This party contributed very constructively to this debate and I agreed with, and spoke on, a number the amendments Senator Zappone tabled. The Minister has refused to restate the Government's commitment not to increase income tax rates. We are dealing with a section on income tax. I have asked the Minister to repeat that commitment but he has refused to do so and one can only draw conclusions from that.
On a point of order, we are dealing with a Bill on civil partnerships not the broad issue of tax. I would welcome a debate on the broad issue of tax on another day but not today because that is not on the agenda. This Bill concerns civil partnerships and how the children of civil partners are treated.
We are debating something that is quite sensitive for many people and it should not be used as a vehicle for a party political point. However, since Senator Byrne raised it and since he will dig his heels in, I will say that the Taoiseach has spoken for the Government, so the Senator can refer to his statement and what he said about income tax.