The Tax Appeals Commission’s (TAC) objective is to fulfil the obligations placed on it by the Finance (Tax Appeals) Act 2015 and the Taxes Consolidation Act 1997 (“TCA 1997”). To fulfil these, the TAC facilitates taxpayers in exercising, where appropriate, their right of appeal to an independent body against decisions and assessments of the Revenue Commissioners and the Criminal Assets Bureau.
The Issue for Determination
Recently, the TAC issued a determination addressing an Appellant’s (taxpayer’s) assertion that a Notice of Assessment to Capital Gain Tax (CGT) for 2011, issued by the Respondent (Revenue Commissioners) on 4 December 2018, should not have disallowed his claim for retirement relief (S598 TCA 1997) and Company Amalgamations/exchange of shares relief (S586 TCA 1997) which he had claimed in his income tax return for 2013. The Revenue Commissioners had also issued a (related) Notice of Amended assessment to Income Tax for 2011 on the 5 December 2018.
In 1990, after many years of construction industry experience, the taxpayer set-up a building contracting company (the company) serving mainly local authorities and councils. He and his wife were the directors of the company. In 1997, his son started working for the company. 10 years later, with the taxpayer’s health in decline, he started the process of getting his son (the taxpayer’s son) to take over more of the running of the company. The taxpayer’s son’s wife also worked for the company in an administrative capacity. By 2011, the taxpayer contended that he wished to retire. A company was formed (HoldCo) of which the taxpayer’s son and his wife were the directors. The taxpayer sold some of his shares in the building company to HoldCo for €700,000. The balance of his shares and his wife’s share were transferred to HoldCo, for which they were issued 50% of the shares in HoldCo.
The €700,000 was not paid to the taxpayer until 2013. The taxpayer did not resign at any time as a director of the company nor was the taxpayer’s son ever appointed. The taxpayer and his wife continued to take undiminished salaries from the company until 2013.
In 2018, the company was audited by the Revenue Commissioners (with a view to examining the transaction now subject of this appeal) and it was the taxpayer who attended the audit meeting along with the taxpayer’s son’s wife.
The Revenue Commissioners contended that at the audit meeting, the taxpayer said that nothing had really changed in the running of the business in 2011 compared to 2018. He also confirmed that the company’s office was in his house, he still effected payments from the company, but was only an adviser/mentor to his son since 2011. The Revenue Commissioners contended that they did not get a clear answer as to why the €700,000 payment was not made until 2013 but they believed that the company was not in a financial position to do so in 2011. While acknowledging that someone does not have to actually retire nor retire as a director in order to avail of retirement relief, it felt that on the “basket of evidence” the transaction was not entered into for bona fide commercial reasons.
On examination at the hearing, the taxpayer (and his son) outlined that the delay in the payment for the shares was to support bonds required for their construction contracts. They did not have any reason why the taxpayer’s son was not appointed as a director nor why the contact details on national websites, etc. were not updated. They also outlined that the taxpayer attended the Revenue audit meeting as he was the person familiar with the audit period being looked at.
The TAC in its determination considered all the information and oral evidence, and found as material facts that:
- The payment of €700,000, if it had been made in 2011, would not have been in the company’s interests
- The taxpayer retained effective control of the company post-2011 through his ownership and directorship
- In particular, the taxpayer retained financial and strategic control of the company
- The transaction was not made for a bona fide commercial reason and that it did form part of a scheme of arrangement with the main purpose to avoid tax (S586 (3)(b) and S598 (8) TCA 1997)
- Whilst the Revenue Commissioners were entitled to have issued their alternative Income tax assessment (per S817 TCA 1997), it was not necessary to consider it as the CGT assessment should be upheld in this case.
The Commissioner determined that the Revenue Commissioners assessment to CGT for 2011 in the amount of €348,112 should stand.