Enda Kenny (Mayo, Fine Gael)
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Question 224: To ask the Minister for Finance the Government's position in relation to a person who is living in Donegal but working for a company in Northern Ireland, driving a company car registered in Northern Ireland and who subsequently finds the car is seized by customs in Donegal; and if he will make a statement on the matter. [34789/05]

Brian Cowen (Laois-Offaly, Fianna Fail)
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I am not sure whether the Deputy is referring to a specific case but in reply to his questions I am advised by the Revenue Commissioners that in accordance with section 135 of the Finance Act 1992, a State resident is not entitled to drive foreign registered category A vehicles in the State without the permission of the Revenue Commissioners. Standard passenger cars come within the definition of a category A vehicle. Under certain conditions, current legislation does make provision for residents of the State to drive foreign registered commercial vehicles.

The Revenue Commissioners have advised me of a recent decision of the European Court of Justice in this area, case C-464/02 of 15 September 2005. This relates to the right, under certain circumstances, of persons resident in a certain member state to drive, while travelling in that member state, vehicles registered in another member state supplied by their employer in that other member state. The impact of this judgement is currently being reviewed. Pending this review, officers have been instructed not to seize vehicles in such circumstances and persons or companies who have encountered difficulties in this regard are advised to contact the Office of the Revenue Commissioners, Áras Ailigh, Bridgend, County Donegal.

As an interim measure, the Revenue Commissioners will grant relief to State residents to drive foreign registered vehicles in the circumstances outlined, subject to the following conditions: the person is employed directly by an employer who is "a person established outside the State"; the vehicle in question is owned or leased by that employer; use of the vehicle in the State will be confined to the employee only; and the vehicle may not be disposed of in the State.

If the Deputy is aware of any person who had a vehicle seized in these circumstances, he or she should contact the Office of the Revenue Commissioners at the above address in the first instance.

Brendan Howlin (Wexford, Labour)
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Question 225: To ask the Minister for Finance the reason share fishermen and crewmen of fishing vessels are deemed by the Revenue Commissioners to be self employed for tax purposes, while under section 2(3)([i]c[/i]) of the Safety, Health and Welfare at Work Act 2005 are deemed to be employees of owners or skippers; his views on whether this difference in status requires amendment; and if he will make a statement on the matter. [34768/05]

Brian Cowen (Laois-Offaly, Fianna Fail)
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I am advised by the Revenue Commissioners that the question of whether an individual, including share fishermen and crewmen of fishing vessels, is either employed or self employed is, not alone for tax purposes but for many other purposes, a question of general law and determined having regard to the facts and circumstances of each case. In brief, the courts have found that all the possible factors, including written, oral and implied factors, which bear on the relationship between two parties must be examined, given their proper weight and a judgment made about their overall effect to determine whether one such party is an employee of the other.

Similarly, in the case of share fishermen and crewmen of fishing vessels, the precise terms of each individual's engagement, whether written, oral or implied, must be examined to determine whether such individual is either employed or self employed. Revenue and the Department of Social and Family Affairs have prepared guidelines to assist employers and workers to determine whether an individual is employed or self employed and the Deputy may wish to note that for tax purposes some share fishermen and crewmen of fishing vessels are employees whilst others are self employed.

On the other hand, I am informed by the Department of Enterprise, Trade and Employment that a "share fisherman" is deemed under section 2(3)(c) of the Safety, Health and Welfare at Work Act 2005 to be an employee of the owner or skipper of fishing vessel where he or she is remunerated by a share in the catch or the profits or gross earnings of the vessel. The purpose of this is to ensure that a person who works on a fishing vessel, other than as a skipper or as an owner, is given the protective rights of an employee under the Act even if he or she is not an employee.

Where a person, although not an employee, is deemed to be an employee, such deeming is only for the purposes of the specific statute: for example, the deeming under section 2(3)(c) of the Safety, Health and Welfare at Work Act 2005 of share fishermen and crewmen of fishing vessels to be employees of the owners or skippers of a fishing vessel is very narrow and is only for the purposes of that Act. There are no proposals under consideration to change the tax legislation so as to deem all share fishermen and crewmen of fishing vessels to be employees for tax purposes of the owners or skippers of a fishing vessel.