Tax Treatment of Flight Crew Members

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1 Tax Treatment of Flight Crew Members Revised May Introduction Section 16 Finance Act 2011 inserted a new section - Section 127B - into the Taxes Consolidation Act The Section provides for the taxation under Schedule E (and, therefore, within the scope of the PAYE system) of employment income arising to a flight crew member in respect of an employment exercised aboard an aircraft operated in international traffic where the place of effective management of the enterprise operating the aircraft is in this State. 2. Background Many double taxation agreements (DTAs) allocate full taxation rights on the income of flight crews (including non-resident flight crews) operating in international traffic to the jurisdiction or country in which the place of effective management of the airline enterprise operating the aircraft is situated. This is in line with Paragraph 3 of what is known as the Employment Article (Article 15) in the OECD s Model Tax Convention on Income and on Capital. To give effect to a taxing right allocated under a double taxation agreement, a charge to tax must be found in domestic tax legislation. Section 16 Finance Act 2011 introduced such a charge by inserting Section 127B into the Taxes Consolidation Act Members of flight crews - Position up to and including the 2010 tax year 3.1 Irish resident individuals Irish resident members of flight crews are chargeable to tax here on their worldwide income subject to any relieving provisions or credits for foreign tax paid that may be found in a DTA. 3.2 Non-resident individuals Non-resident members of flight crews are chargeable to tax here on the income attributable to that element of their duties exercised in the State. In general, the country of residence (if a jurisdiction with which Ireland holds a DTA) will grant relief/credit for the Irish tax paid. Additionally, most double taxation agreements provide that the remuneration will be taxable solely in the country of residence where - the individual is not present in the State for a period or periods exceeding in the aggregate 183 days in any 12 month period beginning or ending in the tax year; 1

2 the remuneration is not paid by or on behalf of an employer resident in this State; and the remuneration is not borne by a permanent establishment which the employer has in this State. Note In each particular case, it is important to examine the relevant DTA as the terms of such agreements can vary. 4. Members of flight crews - Position for 2011 and subsequent tax years 4.1 Irish resident individuals Irish resident members of flight crews are chargeable to tax here on their worldwide income subject to any relieving provisions or credits for foreign tax paid that may be found in a double taxation agreement. 4.2 Non-resident individuals (a) Re employments exercised aboard aircraft operated in international traffic where the place of effective management of the enterprise operating the aircraft IS NOT in this State. The position at Paragraph 3.2 above continues to apply. (b) Re employments exercised aboard aircraft operated in international traffic where the place of effective management of the enterprise operating the aircraft IS in this State. With effect from the tax year 2011, Section 127B provides for the taxation under Schedule E of the employment income arising to a flight crew member in respect of an employment exercised aboard an aircraft operated in international traffic where the place of effective management of the enterprise operating the aircraft is in this State notwithstanding that the duties (or any part of such duties) of such an employment are not exercised in the State and the individual is not tax resident in the State. Whether this charge is relieved from Irish tax will depend on whether a DTA agreement is in place between the State and the jurisdiction in which the employee resides. For example - (i) where a DTA is in place, then - (I) (II) if the relevant double taxation agreement allocates full taxing rights to the State in respect of income from an employment exercised aboard an aircraft operated in international traffic where the place of effective management of the enterprise operating the aircraft IS in this State, then the charge to Irish tax is not relieved; if the relevant DTA does not allocate full taxing rights to the State in respect of income from an employment exercised aboard aircraft operated in international traffic where the place 2

3 of effective management of the enterprise operating the aircraft IS in this State, then Paragraph 3.2 above applies; (ii) where a DTA is not in place (or where an individual flight crew member is not tax resident in any state), then the Section 127B charge on nonresident flight crews is not relieved from the charge to Irish tax. 5. Other matters 5.1 Non-residents and Tax Credits and Reliefs Section 1032 TCA 1997 outlines a non-resident s entitlement to allowances, deductions, reliefs and tax credits (see Tax and Duty Manual ). Nonresident individuals who have income within the charge to tax by virtue of section 127B TCA 1997 may be granted the appropriate tax credits in real time through the PAYE system. As regards the personal tax credits, Tax and Duty Manual deals with the taxation of married couples/civil partners and, in particular, the credits that are due where aggregation of the income of husband and wife/civil partners where one or both spouses/partners are not tax resident in the State. The practice outlined in Tax and Duty Manual should be applied, as far as is practicable, when issuing tax credit certificates (TCCs) to a non-resident individual who has income within the charge to Irish tax by virtue of Section 127B (rather than by way of review). In addition to the personal tax credits, other tax credits and reliefs may be granted in TCCs, subject to an individual satisfying the appropriate criteria for granting such credits and reliefs Non-residents and the home carer tax credit Home carer tax credit may be granted where the dependent person is a child of the claimant or of his or her spouse / civil partner in respect of whom the claimant or his or her spouse /civil partner is in receipt of an allowance or benefit from the home state similar to child benefit payable under Part 4 of the Social Welfare Consolidation Act 2005 at any time during the tax year. 5.3 Non-residents and Mortgage interest relief Tax relief on interest paid on monies used to purchase an individual s sole or main residence may, subject to the normal criteria, be granted where the principal private residence is located in an EU Member State. 6. Universal Social Charge (USC) A non-resident individual who has income within the charge to tax by virtue of section 127B is also liable to the USC on such income. There is an exemption threshold below which USC is not chargeable. These thresholds are as follows: 3

4 to ,004 10,036 12,012 13,000 However, when the threshold is exceeded, all of an individual s income is chargeable to the USC. The rates of USC are: Rate 2015 Rate 2016 Rate On the first 10,036 2% On the first 12, % On the first 12,012 1% On the next 5,980 4% On the next 5, % On the next 6,656 3% On the balance 7% On the next 52,468 7% On the next 51, % On the balance 8% On the balance 8% An individual aged 70 years and over and an individual who is entitled to a full medical card in Ireland under Irish or EU legislation are generally chargeable to the USC at a maximum rate of 3%. Where the individual s income exceeds 60,000, the standard rates of USC apply. Revenue will accept forms A1 (formerly E101) in the case of social security coverage and S1 (formerly E106) in the case of healthcare coverage that are obtained from the relevant public bodies in the original Member State as evidence of entitlement to a full medical card for the purpose of determining the rate at which the USC is to be charged. 7. Contributions to foreign pension schemes Many of the individuals brought into the charge to Irish tax by virtue of Section 127B TCA 1997 are members of, and contribute to, a pension scheme in their country of residence. With effect from 1 January 2011, relief will be available in respect of contributions made directly by such a non-resident individual into a foreign pension scheme where: (a) the non-resident employee - (i) (ii) (b) the employer - (i) has income within the charge to tax by virtue only of section 127B; is making contributions to the foreign pension scheme referred to in (c) below; and is resident for tax purposes in an EU Member State or in a country with which the State has a DTA; (ii) is making contributions to a foreign pension scheme on behalf of the employee; and (c) the foreign pension scheme is a statutory scheme in a State or country mentioned in (b)(i) above, other than a State Social 4

5 Security scheme, or is a scheme in respect of which tax relief is available in such a State or country; and (d) both the employer and employee contributions comply with the rules of that foreign pension scheme. Revenue will also treat contributions made by the employer to the pension scheme, for the benefit of the employee, as not being taxable. Note: Relief will be granted on the employee s pension contribution to the foreign scheme to the extent that relief would have been granted in the State if the contribution had been made to an Irish pension scheme. The normal age related income percentage limits on contributions, fund threshold and aggregate earnings cap apply. 8. Emergency or incidental flights Income arising to an employee engaged in emergency or incidental flights may be disregarded for the purposes of the operation of the PAYE/USC systems where the employment income of such an employee with that employer is not otherwise within the charge to tax by virtue of section 127B TCA Emergency or incidental flights in this context should be taken to mean no more than 5 return flights in any tax year. 5

6 Appendix 1 Examples (for 2011 and subsequent years) Example 1 Seán is tax resident in the State and has an employment that is exercised aboard an aircraft that operates between Ireland and France (international traffic). The enterprise that operates the aircraft has its place of effective management in this State. As Seán is tax resident in the State, he is chargeable to income tax under Schedule E on his employment income regardless of where the duties of his employment are exercised. As Article 12(3) of the Ireland/France DTA allocates taxation rights on Sean s employment income to the State, such income is not relieved from the charge to Irish tax. Example 2 Maria is tax resident in France. She has an employment that is exercised aboard an aircraft that operates between France and Germany (international traffic). The enterprise that operates the aircraft has its place of effective management in this State. As the enterprise that operates the aircraft has its place of effective management in this State, her relevant employment income is within the charge to Irish tax with effect from the tax year As Article 12(3) of the Ireland/France DTA allocates taxation rights on Maria s employment income to the State, such income is not relieved from the charge to Irish tax. The question of any relief/credit to be granted to Maria in France in respect of Irish tax suffered is a matter for the French authorities having regard for the appropriate DTA article. Example 3 Joe is not tax resident under the domestic tax laws of any state. He has an employment that is exercised aboard an aircraft that operates in international traffic and in foreign domestic traffic but the enterprise that operates the aircraft has its place of effective management in this State. With effect from the tax year 2011, Joe s income attributable to the exercise of his duties aboard an aircraft in international traffic is within the charge to Irish tax as the enterprise that operates the aircraft has its place of effective management in this State. However, that element of Joe s income in respect of the duties exercised aboard an aircraft in domestic traffic, is not within the charge to Irish tax as he is not tax resident in the State and performs none of those duties of his employment in the State. 6

7 Example 4 Karl is tax resident in Germany. He has an employment that is exercised aboard an aircraft that operates between Frankfurt and Berlin (domestic traffic). The enterprise that operates the aircraft has its place of effective management in this State. As Karl is not tax resident in this State, performs none of the duties of his employment in this State and is working aboard an aircraft in domestic traffic in Germany, there is no charge to tax in this State on this employment income. A PAYE exclusion order may be issued on receipt of written confirmation from his employer that he is not resident in Ireland, performs none of the duties of his employment in Ireland and is engaged solely on domestic flights in Germany. Example 5 Elena is tax resident in Brazil. She has an employment that is exercised aboard an aircraft that operates between Brazil and Argentina (international traffic). The enterprise that operates the aircraft has its place of effective management in this State. With effect from the tax year 2011, Elena s relevant employment income is within the charge to Irish tax as she is employed aboard an aircraft in international traffic and the enterprise that operates the aircraft has its place of effective management in this State. As Ireland does not have a DTA with Brazil, the domestic tax charge on her employment income is not relieved by the terms of a DTA and therefore is fully within the charge to tax in this State. The question of any relief/credit to be granted to Elena in Brazil in respect of Irish tax suffered is a matter for the tax authorities in Brazil. Example 6 Leo is also tax resident in Brazil. He has an employment that is exercised aboard an aircraft that operates between Brasilia and Sao Paulo (domestic traffic). The enterprise that operates the aircraft has its place of effective management in this State. Leo s income is not within the charge to Irish tax as he is not tax resident in the State, performs none of the duties of his employment in the State and he is employed aboard an aircraft solely in domestic traffic. A PAYE exclusion order may be issued on receipt of written confirmation from his employer that he is not resident in Ireland, performs none of the duties of his employment in Ireland and is engaged solely on domestic flights in Brazil. Example 7 Tim is tax resident in the UK. His employment is exercised aboard an aircraft that operates between the UK and Ireland (international traffic) and between London and Manchester (domestic traffic). The enterprise that operates the aircraft has its place of effective management in this State. 7

8 With effect from the tax year 2011, Tim s income attributable to the performance of his duties in Ireland and attributable to the performance of his duties in international traffic is within the charge to Irish tax. Notwithstanding this domestic tax charge, Article 15 of the Ireland/UK DTA only allocates a taxing right to this State in respect of the income attributable to exercising the employment in this State and does not allocate taxing rights to this State in respect of employment aboard an aircraft in international traffic. Accordingly, as was the case prior to the tax year 2011, Tim is liable to Irish tax in respect of the income attributable to duties exercised in the State only. This is generally calculated by reference to landing days in the State. The question of any relief/credit to be granted to Tim in the UK in respect of Irish tax suffered is a matter for the UK authorities having regard for the appropriate DTA article. 8

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