Trusts and Offshore Structures. Disclosure of Undeclared Tax Liabilities

Transcription

1 Trusts and Offshore Structures Disclosure of Undeclared Tax Liabilities Explanatory Note - March 2009

2 1. Introduction An investigation of the tax treatment of property, assets and funds settled by persons on foreign and Irish trusts and similar structures will commence on 1 September This announcement is made in the light of Revenue s experience that the use of special purpose entities, such as, trusts and foundations represents a tax risk and also the new reporting obligations on Third Parties in relation to settlements involving non-resident trustees. The investigation is focused on persons who have undeclared tax liabilities in respect of settlements of property, assets and funds on trusts and similar structures or have tax issues in relation to profits or gains arising within, or disbursements out of, such trusts or structures. The term settlement includes any disposition, trust, covenant, agreement or arrangement, and any transfer of money or other property or of any right to money or other property. Persons who have undeclared tax liabilities in respect of settlements made on trusts or other structures, such as, foundations, establishments, trust enterprises or offshore companies, may avail of the benefit of qualifying disclosure provided the qualifying disclosure rules at paragraph 3 below are satisfied. The benefits of making a qualifying disclosure include substantial mitigation of penalties, non-publication of the payment details and non-prosecution. Persons who fall within the category referred to and who fail to deliver a notice of intention to make a qualifying disclosure are precluded from getting the benefits once the deadline of 1 September 2009 has passed. 2. Third Party Reporting & Revenue Investigation A new reporting requirement at section 896A of the Taxes Consolidation Act 1997 obliges Third Parties, such as, solicitors, accountants, financial institutions and tax practitioners, to provide certain information to Revenue on offshore settlements made by Irish resident or ordinarily resident persons since 24 December The details required are the names and addresses of the Irish resident settlors and the non-resident trustees and the dates of the settlements of the property, assets and funds. These details will be received by Revenue from mid The legislation also allows a Revenue Authorised Officer to issue a notice in writing to any person, where there is reason to believe that the person has information relating to a settlement, requiring the furnishing of such information. The notice may apply to settlements made pre or post 24 December 2003 and is not confined by reference to residency of the trustee. The Revenue investigation will focus on identifying undeclared tax liabilities by persons who have transferred or settled property, assets or funds to / on trusts [whether foreign or Irish] or other similar structures. The investigation will include an examination of the tax returns and reporting compliance requirements of the individual transferors and settlors. The enquiries will examine the nature and quality of the structures and will focus on the tax treatment of the underlying funds and the income and gains arising under the structures as well as any disbursements made out of the structures. 3. Qualifying Disclosure Rules Where, not later than 31 October 2009 (having made a notice of intention by 1 September 2009), a person makes a disclosure on the designated form (Form SPT1) and pays the liability due the disclosure, subject to the conditions set out below, will be treated as an unprompted qualifying disclosure as set out in the Code of Practice for Revenue Auditors. The conditions at paragraphs 4, 5 and 6 below must be complied with to get benefits associated with an unprompted qualifying disclosure as outlined in the Code of Practice for Revenue Auditors. The benefits will apply where the person making the disclosure and payment is not currently under Revenue audit or investigation and, has submitted, not later than 1 September 2009, a Notice of Intention to make a qualifying disclosure, has fulfilled, not later than 31 October 2009, the calculation, disclosure and payment conditions set out in this leaflet, and does not come within the excluded categories set out below: Holders of Bogus Non-Resident (BNR) accounts Ansbacher and CMI / NIB cases Persons previously required to make a disclosure relating to an offshore account / financial product, Single Premium Policy or DIRT-liable accounts Persons who have come or may come under investigation arising from the Moriarty or Flood / Mahon tribunals. The following treatment will apply to a qualifying disclosure: The disclosure will be regarded for the purposes of section 1086 of the Taxes Consolidation Act 1997, as a qualifying disclosure - this means that the identity of the person and details of the payment will not be published, Revenue will not take steps to initiate the prosecution of any offence that may have been committed by the taxpayer, in relation to the disclosure,

3 Penalties will be mitigated in accordance with the Code of Practice for Revenue Auditors. 4. Calculation Conditions The person making the disclosure must prepare: a computation of the amounts giving rise to any liability and a calculation of all Tax (e.g. Income Tax, Value Added Tax, Capital Gains Tax, Capital Acquisitions Tax or any other tax under Revenue s care and management), Duties, PRSI and Levies which are due, at the date of the submission of Form SPTI (see Payment Conditions below), and a calculation of statutory interest and penalties (in accordance with the Code of Practice for Revenue Auditors). The computations and calculations referred to above (together with supporting documentation) must be retained, for inspection on request by Revenue 5. Disclosure Conditions The person making the disclosure must, on the appropriate form (Form SPTI - which can be downloaded from the Revenue website submit the statement of the amounts of Tax, Duties, PRSI and Levies and of interest and penalties calculated to be due by the person in accordance with the Calculation Conditions above, make a full disclosure of all sources of liability to Tax, Duties, PRSI and Levies which have not previously been declared to Revenue, include a statement as to background information, and make a full disclosure of all settlements, transfers and dispositions made and not previously disclosed by the person to Revenue and must identify, in those disclosures, each such settlement, transfer and disposition (by date and amount of settlement / transfer / disposition, name and address of trustee, trust and other structure). 6. Payment Conditions The person making the qualifying disclosure must, not later than 31 October 2009, pay to Revenue the full Tax, Duties, PRSI and Levies, together with interest and penalties in accordance with the Calculation Conditions. 7. Issues relating to Calculations Calculation errors, which are not significant, will not invalidate the benefits of disclosure and payment - the treatment set out in paragraph 3 will continue to apply. To minimise the potential of such errors, the calculations of tax, interest and penalties for periods prior to 1997/98* may, at the option of the person making the disclosure and payment, be carried out on the following basis: in relation to income tax, the liability for all years up to and including 1997/98 may be calculated on the basis that the aggregate undisclosed income of all years preceding 1997/98 was income chargeable for 1997/98 and not any other year; in relation to Value added Tax, the liability for all taxable periods up to and including January / February 1998 may be treated on the basis that the total undisclosed taxable supplies for all periods preceding January / February 1998 arose in that January / February period and not in any other period, in relation to Capital Gains Tax, the liability for all years preceding 1997/98 may be calculated on the basis that the aggregate undisclosed gains of all years preceding 1997/98 were gains chargeable for 1997/98 (at the capital gains tax rate of 40%) and not any other year, and in relation to Capital Acquisitions Tax, the liabilities in respect of taxable gifts and inheritances for the respective years preceding 1997/98 should be calculated in the normal way and the aggregate liabilities for the years preceding 1997/98 may, for the purpose of calculating statutory interest, be treated as due on 1 November 1997 and not in any other year. * where tax is owing for periods prior to 5 April 1991 Revenue are precluded from mitigating penalties for these periods. However, undeclared income for these periods may be taxed by reference to the rates pertaining in 1997/98 but a 100% penalty applies. 8. Consequences of Failure to Disclose and Pay by 31 October 2009 Persons who have undeclared tax liabilities in relation to settlements or transfers of property, assets or funds on / to trusts or similar structures and who fail to avail of a qualifying disclosure are precluded from making a qualifying disclosure if a full payment and disclosure is not made on or before 31 October Where investigations and follow-up enquiries identify taxpayers with undeclared liabilities associated with settlements or transfers of property, assets or funds on / to trusts or similar structures they will face additional penalties and where the settlement exceeds 12,700 for periods up to 2004 or 30,000 for later periods they will be published in Iris Oifiguil. They also may be subject to criminal investigation.

4 9. Further Information A Revenue HELPLINE is available at: & , Monday to Friday, 8.30 a.m. to 4.30 p.m. Enquiries may also be addressed to: Office of the Revenue Commissioners Investigations & Prosecutions Division Special Projects Team 5th Floor, Lansdowne House Lansdowne Road Ballsbridge Dublin 4 which may also be contacted as follows: to specialprojects@revenue.ie Fax number: This Explanatory Note and the disclosure forms are available from the: Revenue website: and Revenue Forms & Leaflets Service by telephoning LoCall This service is available 24 hours a day, 7 days a week. Key Dates Notice of Intention: 1 Sept 2009 Disclosure and Payment: 31 Oct 2009

5 Notice of Intention to make a Qualifying Disclosure of a Tax Default relating to Settlements on Trusts and Offshore Structures Please complete and return this form to the following address (no postage stamp is required) Office of the Revenue Commissioners, Investigations & Prosecutions Division, Special Projects Team, 5th Floor, Lansdowne House, Lansdowne Road, Ballsbridge, Dublin 4. (Tel ) I hereby formally notify the Revenue Commissioners of my intention to make a Qualifying Disclosure in accordance with the Code of Practice for Revenue Auditors of any outstanding tax liabilities arising. I undertake to submit computations and pay the tax, interest and penalty due by 31 October 2009 NAME & ADDRESS (PLEASE USE BLOCK CAPITALS) PPS Number / Tax Reference Number My untaxed funds relate to settlements on the Trusts / Structures listed below: Signed: Date: PLEASE NOTE: This form should be submitted by 1 September 2009