S.I. No. 504 of 2003

REGULATIONS

entitled

Value-Added Tax (Waiver of Exemption)(Letting of Immovable Goods) Regulations 2003

VALUE-ADDED TAX (WAIVER OF EXEMPTION)(LETTING OF IMMOVABLE GOODS) REGULATIONS 2003.

S.I. No. 504 of 2003

The Revenue Commissioners, in exercise of the powers conferred on them by sections 7 and 32(1)(a) of No. 22 of 1972 ), hereby make the following regulations:

1.       These Regulations may be cited as the Value-Added Tax (Waiver of Exemption) (Letting of Immovable Goods) Regulations 2003.

2.       (1)         In these Regulations-

“Act” means No. 22 of 1972 );

“back-dating” in relation to a waiver, means the waiving of a right to exemption from tax in respect of an exempt letting of immovable goods to which paragraph (iv) of the First Schedule to the Act refers, from a date earlier than the current taxable period referred to in Regulation 3(1)(c), and cognate words shall be construed accordingly;

“cancellation request period” means the taxable period during which a request for the cancellation of a waiver is made in accordance with Regulation 3(7);

“registration number” in relation to a person, means the number assigned to the person for the purposes of registration under section 9 of the Act;

“specified letting” means an exempt letting of immovable goods to which paragraph (iv) of the First Schedule to the Act applies;

“waiver” means the waiver by a person of his or her right to exemption from tax on a specified letting.

(2)        In these Regulations-

(a) a reference to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended,

(b) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

3.         (1)   A person who, in accordance with section 7(1) of the Act wishes to waive his or her right to exemption from tax on the supply of a specified letting, shall furnish in writing to the Revenue Commissioners the following particulars-

(a) his or her name and address,

(b) his or her registration number (if any), and

(c) the taxable period, from the commencement of which he or she desires that the waiver should have effect, not being earlier than the current taxable period.

(2)  The Revenue Commissioners shall acknowledge receipt of the particulars referred to in paragraph (1) and shall specify the taxable period (in this paragraph referred to as the ‘start period’) not being earlier than the taxable period referred to in paragraph (1)(c), from the commencement of which the waiver of exemption has effect. From the start period to the date on which the person permanently ceases to supply taxable goods or services (including services to which the waiver of exemption applies), or until his or her waiver is cancelled in accordance with paragraph (8), the Act applies to him or her as if the specified letting were not an exempt activity.

(3)       Where a taxable person makes a specified letting and the immovable goods which are the subject of the letting were acquired or developed by him or her for the purpose of his or her taxable supplies, then notwithstanding paragraph (2), that person may apply to the Revenue Commissioners to backdate the waiver of his or her right to exemption in respect of that letting. However, no application under this paragraph may be made in respect of any disposal of an interest in immovable goods which is deemed to be a letting of immovable goods to which paragraph (iv) of the First Schedule to the Act applies by virtue of section 4(3A)(a)(ii) of the Act.

(4)       An application under paragraph (3) shall be made in writing to the Revenue Commissioners and shall include the following-

(a) the name, address and registration number of the taxable person making the application,

(b) the tenant's name, address and registration number,

(c) details of the letting agreement, and

(d) the date from which the taxable person desires that the waiver shall have effect.

(5)       A waiver of exemption shall be backdated only where the tenant would have been entitled to deduct, in accordance with section 12 of the Act, all the tax that would have been chargeable in respect of the letting if the waiver had applied from the date specified in accordance with paragraph (6)(a)(i) to the date notified in accordance with paragraph (6)(a)(ii).

(6)       Where the Revenue Commissioners are satisfied that an applicant has complied with paragraph (4) and that paragraph (5) applies-

(a) they shall notify the applicant-

(i)        that the waiver may be back-dated in respect of the letting for which back-dating of a waiver was sought specifying the date to which the waiver shall be back-dated being a date not earlier than 26 March 1997, and

(ii)        of the date from which he or she is deemed, for the purposes of the Act, to have waived his or her right to exemption in respect of all specified lettings which he or she supplies, such date not being earlier than the commencement of the taxable period during which the notification issued, and

(b) any tax chargeable on the letting of immovable goods resulting from the back-dating of a waiver prior to the date notified under subparagraph (a)(ii) is deemed to have been due and paid by the taxable person in accordance with section 19 of the Act and deducted by the tenant in accordance with section 12 of the Act.

(7)       A person who, in accordance with paragraph (1), waives his or her right to exemption in respect of a specified letting shall be entitled to have such waiver cancelled and to be treated, as from the date specified in paragraph (8), as a person who had not so waived provided he or she-

(a) applies to the Revenue Commissioners in writing to have the waiver of his or her right to exemption cancelled,

(b) furnishes particulars to the Revenue Commissioners of-

(i)    the tax paid by him or her in accordance with section 19(3) of the Act in respect of or in relation to the supply of services by him or her to which the waiver applied for all taxable periods comprised in the period commencing with the beginning of the start period and ending with the termination of the taxable period immediately preceding the cancellation request period, and

(ii)    the total amount of tax deducted or deductible by him or her referred to in paragraphs (a), (b) and (c) of subsection (3) (inserted by section 100 of the Finance Act 1997 ( No. 22 of 1997 )) of section 7 of the Act in respect of all of the taxable periods comprised in the period referred to in clause (i), together with the total amount of tax deducted by him or her referred to in paragraph (aa) (inserted by section 117 of the Finance Act 2003 ( No. 3 of 2003 )) of the said subsection (3),

and

(c) pays to the Collector-General an amount equal to the excess (if any) of the tax referred to in subparagraph (b)(ii) over the tax referred to in subparagraph (b)(i).

(8)   Where a person wishing to have his or her waiver cancelled, complies with paragraph (7) to the satisfaction of the Revenue Commissioners, they shall so notify the person in writing. On receipt by the person of the notification, his or her waiver shall be cancelled with effect from the end of the taxable period during which he or she is so notified and from the end of that taxable period the person shall be treated as a person who had not waived his or her right to exemption.

(9)  A person who applies for the cancellation of his or her waiver in accordance with paragraph (7) is not entitled, under section 20(1) of the Act, to any refund of tax (other than a refund referable solely to some error or mistake made by him or her) for the cancellation request period or any subsequent taxable periods, in relation to the letting to which the waiver relates, in excess of an amount calculated in accordance with the following sum:

A + B

where-

A is the excess of the amount referred to in paragraph 7(b)(i) over the amount referred to in paragraph 7(b)(ii), but where there is no such excess A is equal to zero.

and

B is the sum of the amounts of tax paid under section 19(3) of the Act, in relation to the letting to which the waiver relates, for the cancellation request period and any subsequent taxable periods until the waiver is cancelled.

4.         Regulation 4 of the Value-Added Tax Regulations 1979 ( S.I. No. 63 of 1979 ) is revoked.

Explanatory Note.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations provide the conditions and procedures which a person must comply with in order to waive his or her right to exemption from tax on the letting of immovable goods or to cancel that waiver.

These Regulations replace Regulation 4 of the Value-Added Tax Regulations 1979.