Michael Healy-Rae (Kerry, Independent)
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67. To ask the Minister for Finance his plans to change the 180-day tax rule (details supplied); and if he will make a statement on the matter. [10685/20]

Paschal Donohoe (Dublin Central, Fine Gael)
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I am advised Revenue that an individual’s tax residence position is determined in accordance with the provisions of section 819 Taxes Consolidation Act 1997. In that regard, an individual’s tax residence status is determined by reference to his or her presence in the State during a particular tax year. For example, an individual will be considered tax resident in the State if they are present for:

- 183 days or more in a tax year; or

- 280 days or more in a tax year and the preceding tax year when taken together, with a minimum of 30 days in each year.

An individual’s liability to Irish income tax is determined by reference to the source of his or her income and his or her Irish tax residence, ordinary residence and domicile status for a particular year.

Once an individual has been tax resident in the State for three tax years, he or she will also be considered ordinarily resident from the fourth year.

Domicile is a legal concept and is not defined in tax legislation. Every person must have a domicile and a person can only have one domicile at any particular time. An individual is born with a domicile of origin, usually the domicile of his or her father. However, it is possible for an individual to acquire a domicile of choice, but this appears to be outside of the current question raised.

An Irish resident and domiciled individual is taxable on his or her worldwide income. Generally, non-residents are only taxable in respect of income from Irish sources. However, individuals who are not resident but who are ordinarily resident may also be liable to Irish income tax in respect of certain non-Irish sources. This is subject to any relief being provided by the terms of a relevant Double Taxation Agreement.

An Irish resident but non-domiciled individual is liable to Irish income tax on his or her Irish source income and foreign income to the extent that it is remitted.

An individual who is not resident but is ordinarily resident and not domiciled in the State will be liable to Irish tax on his or her Irish income and foreign income to the extent it is remitted. Income from an employment, all the duties of which are performed outside the State is not liable to Irish income tax, even if remitted.

An individual who is not resident, and not ordinarily resident, is liable to Irish income tax on his or her Irish source income only. This applies regardless of his or her domicile status.

A domicile levy may apply to an Irish domiciled individual where certain conditions are satisfied. Further information on domicile and the domicile levy can be found on Revenue’s website - available here.

Existing Revenue guidance states that where an individual is prevented from leaving the State on his or her intended day of departure due to extraordinary natural occurrences or an exceptional third party failure or action – none of which could reasonably have been foreseen and avoided – the individual will not be regarded as being present in the State for tax residence purposes for the day after the intended day of departure provided the individual is unavoidably present in the State on that day due only to ‘force majeure’ circumstances.

Revenue’s interpretation of “force majeure” has been updated to consider those cases who as a result of COVID-19 have had a departure from the State restricted directly as a result of the emergency situation. In any case where a taxpayer relies upon “force majeure”, it will be necessary for him or her to be able to appropriately support this position (i.e. information/documentation in relation to how a departure from the state has been prevented due to restrictions in place).

Therefore, where an individual is present in the State in 2020, his or her tax residence position should be determined with regard to his or her presence in the State, while having regard to the “force majeure” position. The guidance on “force majeure” is included on the COVID-19 section of Revenue’s website - available here.