Knowledge Development Box. Feedback Statement July 2015

Knowledge Development Box Feedback Statement July 2015

Knowledge Development Box Feedback Statement Department of Finance 30 July 2015 Department of Finance Government Buildings, Upper Merrion Street, Dublin 2 Ireland Website: www.finance.gov.ie Department of Finance Knowledge Development Box 2015 Page i

Contents Introduction... 1 Main Issues... 2 Next Steps... 15 Department of Finance Knowledge Development Box 2015 Page ii

Introduction The Department of Finance held a public consultation on the introduction of the Knowledge Development Box ( KDB ) from the 14 th January to 8 th April 2015. The input to the consultation and the level of engagement from industry and other interested parties was very strong with nearly 40 written submissions received and a number of meetings held with officials from the Department and the Revenue Commissioners. At the same time, officials have continued to engage with the OECD s Forum on Harmful Tax Practices on the internationally agreed parameters that will confirm what acceptable tax competition in this area is, and what may be a compliant KDB regime. The discussions on the modified nexus have been on-going at the Forum on Harmful Tax Practices and a consensus on the topic is expected very shortly. In light of the complexity of the modified nexus parameters within which the tax incentive is being designed, the Department is now publishing this paper to respond to the views expressed in the public consultation and to set out possible approaches dealing further with the more detailed considerations that have arisen. The issues set out below are important for the overall design of the KDB to ensure that it meets its key objective of being the most competitive in class, within the agreed international parameters for fair tax competition in this area. Department of Finance Knowledge Development Box 2015 Page 1

Main Issues Qualifying Assets As set out in the original consultation document, the discussions at the OECD will restrict the types of assets that will be able to qualify for the relief, and that document therefore asked respondents to describe assets that should be included as functionally equivalent to patents. A number of submissions made the point that a restriction on the types of assets that may qualify is potentially distortive, as only certain sectors are engaged in activities that use patents. It was suggested that this may therefore create a bias towards certain sectors in the Irish economy, and discourage other sectors from coming to Ireland. It was also submitted that restricting the types of assets which may qualify is particularly challenging for start-ups and smaller companies. The OECD have set clear parameters around the types of assets and related activities that may qualify for relief under the KDB. From an Irish perspective, while acknowledging the valid points raised in our consultation which have also been reflected in our discussions at the OECD, there is no flexibility beyond the approach agreed at the OECD. It is important that Ireland follows the international standard as anything beyond these parameters would be viewed as a harmful tax practice and therefore not sustainable in any jurisdiction. It should also be noted that the same international standards will apply to all jurisdictions. Therefore, while certain activities may not be able to avail of the benefits of a KDB regime, our standard 12.5% rate will still be available. The 12.5% rate will continue to ensure Ireland remains a competitive location. The KDB is a policy tool to encourage innovation. It is therefore important that any assets that would qualify are the result of R&D, including scientific or technological advancement as (recalling the research done as part of the 2013 Review of the R&D Tax Credit 1 ) this has a particular benefit to the Irish economy. The Department is currently considering what IP assets should qualify within the confines of the OECD guidance. 1 http://budget.gov.ie/budgets/2014/documents/department%20of%20finance%20review%20of%20r&d%20t ax%20credit%202013.pdf Department of Finance Knowledge Development Box 2015 Page 2

One possible approach is that the following definitions could determine what is a qualifying asset: qualifying asset means an asset which is intellectual property, other than marketing related intellectual property, which is the result of research and development activities; intellectual property, other than for the purposes of the definition of acquisition costs, means: (a) a patent granted under the laws of the State or under any corresponding provisions of any territory outside the State, (b) any copyright or related right within the meaning of the Copyright and Related Rights Act 2000, or any corresponding provision of law of any other territory outside the State, in relation to computer software, (c) any supplementary protection certificate issued under Council Regulation (EC) No 469/2009 of 6 May 2009 (OJ L152, 16.6.2009, p 1) concerning the supplementary protection certificate for medicinal products, (d) any supplementary protection certificate issued under Regulation (EC) No. 1610/96 of the European Parliament and of the Council of 23 July 1996 (OJ L198, 8.8.1996, p 30) concerning the creation of a supplementary protection certificate for plant protection products, or (e) any plant breeders rights within the meaning of section 4 of the Plant Varieties (Proprietary Rights) Act 1980, as amended by the Plant Varieties (Proprietary Rights) Amendment Act 1998; marketing related intellectual property includes trademarks, brands, image rights and other intellectual property used to market a qualifying asset; research and development activities means systematic, investigation or experimental activities in a field of science or technology, being one or more of the following (i) experimental or theoretical work undertaken primarily to acquire new scientific or technical knowledge, with a specific practical application in view, (ii) applied research, namely, work undertaken in order to gain scientific or technical knowledge and directed towards a specific practical application, or (iii) experimental development, namely, work undertaken which draws on scientific or technical knowledge or practical experience for the purposes of achieving technological advancement and which is directed at producing new, or improving existing, materials, products, devices, processes, systems or services including incremental improvements thereto; The scope of patents and copyrighted software that may be included in the definition of qualifying assets is under active consideration. Department of Finance Knowledge Development Box 2015 Page 3

Qualifying Expenditure Most submissions were of the view that expenditure which qualifies for the R&D tax credit is the most appropriate definition for the expenditure which should qualify for the purposes of the KDB. There were however, some suggestions that the definitions used should be broader than that. The discussions at the OECD have agreed that qualifying expenditure should follow the OECD Frascati Manual, but with a specific exclusion for buildings. It is envisaged that the KDB therefore would follow this agreed standard. Several submissions stated that if the management and control of the R&D remains inhouse, such companies should be allowed to outsource some specialist R&D activities without being penalised. Under the modified nexus outsourced activities to unrelated parties may be included as qualifying expenditure. It is only outsourcing to related parties (e.g. between companies within group structures) that is restricted. The OECD has, however, proposed allowing an additional uplift for outsourcing and acquisition costs that are excluded from qualifying expenditure under modified nexus : this means that acquisition and outsourced costs to related parties could be allowed, but only up to a maximum of 30% of the total amount of qualifying expenditure. To recognise that intra-group outsourcing and acquisitions are a part of regular business models, and the need to provide for a best in class offering, the KDB could include this maximum 30% uplift. Further, the KDB could allow for outsourcing that takes place anywhere in the world to qualify, in line with the criteria in the R&D tax credit. The following approach could be used for the definition and scope of qualifying expenditure: (a) Subject to paragraphs (b) and (c), for the purposes of this Chapter, qualifying expenditure on the qualifying asset, in relation to a company, means expenditure incurred by the company in any accounting period in carrying on research and development activities in a relevant Member State where such activities lead to the development, improvement or creation of the qualifying asset, being an amount (i) which is allowable as a deduction in computing the profits or gains from a trade (otherwise than by virtue of section 307), or would be so allowable but for the fact that for accounting purposes it is brought into account in determining the value of an intangible asset, (ii) which is relieved under Chapter 2 of Part 8, or (iii) expended on machinery or plant (other than specified intangible assets within the meaning of section 291A treated as machinery or plant by virtue of subsection (2) of that section) which qualifies for any allowance under Part 9 Department of Finance Knowledge Development Box 2015 Page 4

And for the purposes of this section, where a company pays a sum to an unconnected person in order for that person to carry on research and development activities, then that sum shall be treated as if it were expenditure incurred by the company in the carrying on by it of research and development activities in a relevant Member State. (b) Qualifying expenditure on the qualifying asset shall not include (i) a royalty or other sum paid or payable by a company in respect of the use of intellectual property, (ii) any amount of interest paid or payable, directly or indirectly, (iii) an amount paid or payable directly or indirectly to a connected person to carry on research and development activities, whether under a cost sharing arrangement or otherwise, (iv) expenditure incurred under a cost sharing arrangement with another company to the extent that such expenditure exceeds an amount determined by means of a bargain made at arm s length, (v) any additional amount, agreed between connected persons, on a payment indirectly made through a connected person to an unconnected person to carry on research and development activities, where that additional amount is to be retained by the connected person, (vi) any amount incurred if that amount (I) may be taken into account as an expense in computing income of the company, (II) is expenditure in respect of which an allowance for capital expenditure may be made to the company, or (III) may otherwise be allowed or relieved in relation to the company, for the purposes of tax in a territory other than the State. (c) Qualifying expenditure on the qualifying asset may also include up-lift expenditure, in relation to a qualifying asset, being the lower of (i) 30 per cent of the amount of the qualifying expenditure on the qualifying asset calculated in accordance with paragraphs (a) and (b), or, (ii) the aggregate of acquisition costs and outsourcing costs. acquisition costs, in relation to a company and a qualifying asset, means the costs incurred by the company on the acquisition of intellectual property or rights over intellectual property, but where the company acquires the intellectual property otherwise than by means of a bargain made at arm s length, that acquisition shall, for the purposes of this Chapter, be deemed to be for a consideration equal to the market value of the intellectual property; connected person has the same meaning as in section 10; relevant Member State has the same meaning as in section 766; Department of Finance Knowledge Development Box 2015 Page 5

Qualifying Income Consultation respondents were asked to consider what type of income should qualify for the KDB treatment. In particular, views were sought in relation to the specific calculation of relief under the KDB, and how it may interact with existing and well-established features of the Irish tax system, such as loss relief and relief for foreign tax. The consultation respondents were broadly of the view that trading income (such as royalties) that is attributable to qualifying assets should be included in the definition of qualifying income. On the question of how to attribute embedded royalties, there was a proposal that if the income from the sales of goods or services is more than a set threshold (e.g. 30%) then all the income from such sale should qualify for the KDB. As agreed at the OECD, the treatment of qualifying income should be consistent with the rest of our domestic principles for corporate income tax. Therefore, it should include only income that is derived from the qualifying asset and should be calculated in a way that is proportionate with the benefits that are attributable to the qualifying asset. The following definitions could be used for qualifying income: overall income from the qualifying asset means the following amounts arising to the company in respect of an accounting period (i) any royalty or other sums received or receivable in respect of the use of that qualifying asset, (ii) where the sales price of a product or service, excluding any duty due or payable and excluding any amount of value-added tax charged in the sales price, includes an amount that can be directly related to that qualifying asset, such portion of the income received or receivable from those sales as, on a just and reasonable basis, reflects the value of the qualifying asset to that product or service, (iii) any amount received or receivable for the grant of a licence to exploit that qualifying asset., and (iv) any amounts received or receivable as insurance, damages or compensation in relation to the qualifying asset where that amount is taken into account in computing, for the purposes of assessment to corporation tax, the profits of the specified trade, and overall income from qualifying assets shall be construed accordingly; specified trade has the meaning assigned to it in subsection (3); (3)(a) Subject to paragraphs (b) and (c), for the purposes of this Chapter, specified trade means a trade, other than an excepted trade within the meaning of section 21A, consisting of or including one or more of the following categories of activities (i) the managing, developing, maintaining, protecting, enhancing or exploiting of intellectual property, (ii) the researching, planning, processing, experimenting, testing, devising, developing or other similar activity leading to an invention or creation of intellectual property, or Department of Finance Knowledge Development Box 2015 Page 6

(iii) the sale of goods which are goods or services that derive part of their value from activities described in paragraphs (i) and (ii), where those activities were carried out by the company. (b) In the case of a trade consisting partly of the carrying on of such activities and partly of the carrying on of other activities, that part of the trade consisting solely of the carrying on of activities described in paragraph (a), (c) Where a claim is made under this Chapter to include the overall income from the qualifying asset in the income of a specified trade in any accounting period, then all amounts of income and expenditure related to that qualifying asset shall continue to relate to that specified trade until such time as the qualifying asset is disposed of or ceases to be used. Department of Finance Knowledge Development Box 2015 Page 7

Method of Calculation of Profits The calculation of profits that would qualify for the KDB treatment was an issue raised by a variety of parties, in particular whether or not to treat this as a separate trade. In order to calculate the profits of the KDB activity the KDB could be treated as a separate trade. As such, the normal expenses would be taken into account when determining the profits that could avail of the KDB treatment. In line with evolving OECD thinking on modified nexus, the relief for any losses arising may only be available on a value-basis. The following approach could be taken for the calculation of the profits of the specified trade: (1) (a) Where during an accounting period a company carries on a specified trade, those activities shall be treated for the purposes of this Chapter, Chapter 2 of Part 8, Chapter 3 of Part 12 and Part 41A, as a separate trade distinct from any other trade carried on by the company. (b) Subject to paragraph (c) - (i) in order to determine the profits or gains of the specified trade to be charged to tax under Case I of Schedule D - (I) the income of the trade shall be the total overall income from qualifying assets, and (II) any necessary apportionment shall be made so that expenses laid out or expended in earning the income referred to in (I) shall be attributed to the specified trade on a just and reasonable basis and the amount of the expenses shall be an amount which would be attributed to a distinct and separate company, engaged in the same activities, if it were independent of, and dealing at arm s length with, the company, (ii) for the purposes of determining the amount of any claim made pursuant to section 766(4B)(a), the excess referred to in that section shall be calculated as if this Chapter does not apply. (c) Where a relevant company has carried on a specified trade for one or more previous accounting periods, then the method or methods of apportionment used for the purposes of this section should be applied consistently between accounting periods, unless there has been a significant change in the conduct of the relevant company s trade or business. Relief for losses and charges relating to the Specified Trade could be as follows: Notwithstanding any other provisions of the Tax Acts, where a relevant company makes a claim for relief under (a) section 243A, that section shall apply, with any necessary modifications, as if the amount of relevant trading charges on income relating to a specified trade was reduced by [ ], Department of Finance Knowledge Development Box 2015 Page 8

(b) 396A or 420A, those sections shall apply, with any necessary modifications, as if the amount of a relevant trading loss arising in the course of a specified trade were reduced by [ ], or (c) sections 243B, 396B or 420B, those sections shall apply, with any necessary modifications, as if the reference in the formulae to R were a reference to R as reduced by [ ]. Alternative methods for the calculation of profits are under active consideration but it should be noted that parameters around loss relief are likely to be subject to further OECD guidance. Department of Finance Knowledge Development Box 2015 Page 9

Calculating the tax due under the KDB The OECD have set out that the income which receives benefits in the KDB must be calculated with reference to the following formula: On this basis, the following definitions could be used in calculating the portion of income which qualifies for relief under the KDB: overall expenditure on the qualifying asset in relation to a company, means (i) the qualifying expenditure incurred by that company in relation to that qualifying asset, and (ii) the aggregate of the acquisition costs and the outsourcing costs relating to that qualifying asset, incurred in any accounting period; outsourcing costs, in relation to a qualifying asset, means any amount incurred by a company in carrying out research and development activities which results in a qualifying asset, where that amount would be qualifying expenditure - (i) if the research and development activities were carried out in a relevant Member State, or (ii) but for paragraph (b)(iii) or (b)(vi) of the definition of qualifying expenditure; The calculation of the tax due under the KDB could be as follows: (1) Where qualifying income in respect of a qualifying asset arises in the course of a specified trade, then that company may make a claim in respect of that qualifying asset under this section, in the return required to be filed pursuant to section 959I. Department of Finance Knowledge Development Box 2015 Page 10

(2) Any claim under this section shall be made once in respect of each qualifying asset and shall be made within 12 months from the end of the accounting period to which the claim first relates. (3) In computing for the purposes of corporation tax a company s specified trading profits for an accounting period, in-so-far as it is referable to qualifying income from a qualifying asset in respect of which a claim was made under this section, there shall be made an allowance equal to [ ]% of those profits, calculated as if this Chapter did not apply, and that allowance shall be treated as a trading expense of the specified trade for that period. (4) For the purposes of this section qualifying income, in relation to a qualifying asset, shall be the amount determined by the formula QE x OI OE where QE is the qualifying expenditure on the qualifying asset, OE is the overall expenditure on the qualifying asset, O is the overall income from the qualifying asset. Department of Finance Knowledge Development Box 2015 Page 11

Tracking and Tracing The response to the public consultation identified this area as being particularly important for the KDB, with a number of suggestions being made. The OECD has also been prescriptive in this regard. The focus will be to keep the administrative requirements for companies to a minimum, while still providing for the effective administration of the regime. It is anticipated that transitional measures in relation to tracking and tracing may be agreed at OECD and could therefore form part of the KDB. The following could apply: (1) A company is obliged in respect of all income and expenditures relevant for the purpose of this Chapter to maintain records of such income and expenditure. (2) The records referred to in subsection (1) must show how overall income from the qualifying asset, qualifying expenditure on the qualifying asset and overall expenditure on the qualifying asset are tracked, and the company must, if requested to do so by an officer of the Revenue Commissioners, provide documentation on this tracking to show that such expenditures and income are so linked. (3) The requirement to track and link expenditure to income shall not apply to expenditures incurred prior to 1 January 2016. (4) Subject to subsection (5), the obligations contained in subsections (3) and (4) of section 886 to keep and retain records and linking documents apply to all records, documents or other data created or maintained manually or by any electronic means for the purposes of this Chapter. (5) For the purposes of this section, subsection (4)(a) of section 886 shall apply as if subparagraphs (i) and (ii) had not been enacted. (6) An officer of the Revenue Commissioners may by notice in writing require a company to furnish him or her with such information or particulars as may be necessary for the purposes of giving effect to this Chapter. (7) (a) The Revenue Commissioners may make regulations under this Section and those regulations may contain such incidental, supplemental or consequential provisions as appear to the Revenue Commissioners to be necessary or expedient - (i) to enable persons to fulfil their obligations under this Chapter or under regulations made under this Chapter, or (ii) to give effect to the proper implementation and efficient operation of the provisions of this Chapter or regulations made under this Chapter. (b) Regulations made under this Chapter shall be laid before Dail Eireann as soon as may be after they are made, and if a resolution annulling those regulations is passed by Dail Eireann within the next 21 days on which Dail Eireann has sat after the regulations are laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done under them. Department of Finance Knowledge Development Box 2015 Page 12

Interaction with other provisions Many of the submissions called for the maintenance of the existing provisions for innovation that are also contained in the Irish tax code: specifically the R&D tax credit and the regime for the acquisition of intangible assets provided for in section 291A TCA 1997. While the R&D tax credit, section 291A and the KDB are all aimed at incentivising innovation, they are targeted at different stages a company s business model: - the R&D tax credit is intended to support firms at the time they are undertaking the actual R&D and reduces the net costs they have incurred as a result of undertaking this activity; - section 291A reduces the after tax cost to companies who are investing in and exploiting certain intangible assets and using them in respect of their Irish trade; and - the KDB is aimed at the future income that is generated from the results of the R&D activity (namely the assets that are developed by the R&D). It is not intended that relief under both the KDB and section 291A wwould be available in respect of the same intangible assets. Attention is drawn to the order of offset provision on page 8, whereby the payable R&D tax credit could be calculated before the application of the KDB rate. Department of Finance Knowledge Development Box 2015 Page 13

Miscellaneous In line with good practice, it is proposed that the KDB would have the appropriate antiavoidance provisions. Within the KDB there will be requirements for valuations to be on an arm s length basis, or for apportionments to be done on a just and reasonable basis. Companies to which Ireland s transfer pricing rules apply could have to apply Part 35A with any necessary adjustments to these valuations and apportionments. Similarly, following the 2013 Medium Term Economic Statement 2 and the Department of Finance Tax Expenditure Guidelines 3 which were published in October 2014, it is also proposed that a review clause will apply to the KDB. This will follow good practice for the on-going evaluation of tax expenditures and provide for a regular review of the effective operation of the measure. It is suggested that these could be provided for as follows: Qualifying expenditure on the qualifying asset and overall income from the qualifying asset shall not include any amount unless that amount is determined in accordance with normal commercial arrangements, is for bona fide commercial purposes and is not part of a scheme or arrangement the main purpose, or one of the main purposes, of which is the avoidance of tax. This Chapter shall apply to income arising in accounting periods which commence on or after 1 January 2016 and which end on or before 31 December 2020. 2 http://mtes2020.finance.gov.ie/wp-content/uploads/2013/12/mtes.pdf 3 http://www.budget.gov.ie/budgets/2015/documents/tax_expenditures_oct14.pdf Department of Finance Knowledge Development Box 2015 Page 14

Next Steps The issues addressed in this document will continue to be considered by the Department until the end of August 2015. This is in order to ensure the timely preparation of legislation for publication in Finance Bill 2015. Any queries on the material enclosed can be directed to the Department via the original consultation email address: KDBconsultation@finance.gov.ie Freedom of Information Any interested parties are reminded that such contact is subject to the provisions of the Freedom of Information Act 2014. Department of Finance Knowledge Development Box 2015 Page 15