No. 28/1958:

FINANCE (MISCELLANEOUS PROVISIONS) ACT, 1958

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY AND GENERAL

1 Short title.

2 Interpretation.

PART II TEMPORARY RELIEF FROM TAXATION

3 Exempted trading operations.

4 Disregard of profits of gains, or losses, in the case of exempted trading operations.

5 Transactions between associated persons.

6 Delivery of statements, etc.

7 Exception from Part III of Finance (Miscellaneous Provisions) Act, 1956.

8 Reduction of certain deductions.

9 Dividends.

10 Provision with respect to certain payments.

PART III CUSTOMS AND EXCISE

11 Duty on certain goods brought from airport into another part of the State.

12 Application of certain provisions.

13 Missing dutiable goods.

14 Care and management of duties.

AN ACT TO PROVIDE FOR TEMPORARY RELIEF FROM TAXATION IN RELATION TO PROFITS FROM CERTAIN TRADING ACTIVITIES OF CERTAIN COMPANIES TRADING WITHIN THE CUSTOMS FREE AIRPORT ESTABLISHED UNDER THE CUSTOMS-FREE AIRPORT ACT, 1947 , TO PROVIDE FOR VARIATIONS OF THE DUTIES OF CUSTOMS AND EXCISE IN RESPECT OF CERTAIN ARTICLES BROUGHT FROM THAT AIRPORT INTO ANY OTHER PART OF THE STATE, TO AMEND THE LAW RELATING TO CUSTOMS AND INLAND REVENUE (INCLUDING EXCISE) AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE MATTERS AFORESAID.

[25th November, 1958.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I PRELIMINARY AND GENERAL

1.—This Act may be cited as the Finance (Miscellaneous Provisions) Act, 1958 .

2.—In this Act—

"the airport" has the same meaning as in the Customs-free Airport Act, 1947 ;

"company" means any body corporate carrying on a trade;

"the Corporation Profits Tax Acts" means Part V of the Finance Act, 1920, and the enactments amending or extending that Part;

"the Minister" means the Minister for Finance.

(2) Any reference in this Act to any other enactment shall, except so far as the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.

(3) Part II of this Act shall, so far as it relates to income tax, be construed together with the Income Tax Acts and shall, so far as it relates to corporation profits tax, be construed together with the Corporation Profits Tax Acts.

(4) Part III of this Act, so far as it relates to duties of customs, shall be construed together with the Customs Acts, and, so far as it relates to duties of excise, shall be construed together with the statutes which relate to the duties of excise and the management of those duties.

PART II TEMPORARY RELIEF FROM TAXATION

3.—(1) In this section "qualified company" means a company the whole or part of the trade of which is carried on within the airport.

(2) Subject to subsections (5) and (6) of this section, the Minister may give a certificate certifying that such trading operations of a qualified company as are specified in the certificate are, with effect as from their commencement, exempted trading operations for the purposes of this Part of this Act, and any certificate so given shall, unless it is revoked under subsection (4) of this section, remain in force until the expiration of the period of twenty-five years from the passing of this Act.

(3) A certificate under subsection (2) of this section may be given either without conditions or subject to such conditions as the Minister considers proper and specifies therein.

(4) Where, in the case of a company in relation to which a certificate under subsection (2) of this section has been given—

( a ) the trade of the company ceases or becomes carried on wholly outside the airport, or

( b ) the Minister is satisfied that the company has failed to comply with any condition subject to which the certificate was given,

the Minister may, by notice in writing served by registered post on the company, revoke the certificate.

(5) The Minister shall not certify, under subsection (2) of this section, that a trading operation is an exempted trading operation unless it falls within one or more of the following classes of trading operations:

( a ) the sale of goods exported, or to be exported, out of the State by the qualified company (whether acting as principal or agent), being goods which have been produced, manufactured or processed within the airport by the qualified company,

( b ) the sale of goods exported, or to be exported, out of the State by the qualified company, being goods which have been imported into the State and which have been packaged or handled within the airport by the qualified company,

( c ) the repair or maintenance, within the airport, of aircraft,

( d ) the rendering, within the airport or outside the State, of services entailing the use of aircraft or air transport,

( e ) other trading operations in regard to which the Minister is of opinion, after consultation with the Minister for Industry and Commerce, that they contribute to the use or development of the airport,

( f ) trading operations which are ancillary to any of those described in the foregoing paragraphs of this subsection.

(6) The Minister shall not certify, under subsection (2) of this section, that any of the following trading operations is an exempted trading operation:

( a ) the sale of goods brought, or to be brought, from the airport into any other part of the State otherwise than in the course of being exported out of the State,

( b ) the rendering, to persons resident in the State outside the airport, of services,

( c ) the production or manufacture of goods outside the airport,

( d ) the operation of an air transport service other than an air transport service which—

(i) is operated between the airport and a place outside the State, and

(ii) is not so operated under an international bilateral agreement to which the Government is a party,

( e ) the rendering within the State of—

(i) services to embarking or disembarking aircraft passengers, including hotel, catering, money changing or transport (other than air transport) services, or

(ii) services in connection with the landing, departure, loading or unloading of aircraft,

( f ) the sale of goods by retail,

( g ) the sale of consumable goods for the fuelling of aircraft or for shipment as aircraft stores,

( h ) a trading operation carried on in the course of trading in Great Britain or Northern Ireland.

4.—(1) Profits or gains arising from, or losses sustained in, exempted trading operations shall not be taken into account for any purpose of the Income Tax Acts, or of the Corporation Profits Tax Acts, in relation to the company by which such operations are carried on.

(2) Where the trade carried on by a company consists partly of exempted trading operations and partly of other trading operations, the amount of the profits or gains arising from, or of the loss sustained in, such other trading operations shall, for any purpose of the Income Tax Acts, be computed as it would have been computed for that purpose if the company were carrying on two distinct trades consisting respectively of the exempted trading operations and of the other trading operations.

5.—(1) Where, in the course of exempted trading operations, the company carrying on the operations (hereafter in this subsection referred to as the buyer) buys goods from another person (hereafter in this subsection referred to as the seller) and—

( a ) the seller has control over the buyer or, the seller being a body corporate or partnership, the buyer has control over the seller or some other person has control over both the seller and the buyer, and

( b ) the goods are sold at a price less than the price which they might have been expected to fetch if the parties to the transaction had been independent parties dealing at arm's length,

then, a computation of the profits or gains or losses of the seller, for any purpose of the Income Tax Acts or of the Corporation Profits Tax Acts, shall be made as if the goods had been sold for the price which they would have fetched if the, transaction had been a transaction between independent persons dealing as aforesaid.

(2) In this section "control", in relation to a body corporate, means the power of a person to secure, by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate, or by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate, that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person and, in relation to a partnership, means the right to a share of more than one-half of the assets, or of more than one-half of the income, of the partnership.

6.—Where the Minister has given a certificate under section 3 of this Act—

( a ) the provisions of the Income Tax Acts and of the Corporation Profits Tax Acts relating to the delivery of statements or returns of profits or gains shall continue to have effect in relation to the company concerned as if the certificate had not been given, and

( b ) the Revenue Commissioners may by notice in writing require the company concerned to furnish them, within such time as they may direct, with such accounts and other particulars as the Revenue Commissioners think necessary for the purposes of this Part of this Act, and if the company, without reasonable excuse, fails to comply with the notice, it shall be liable to a penalty not exceeding one hundred pounds and, after judgment has been given for that penalty, to a further penalty of the like amount for each day during which that failure continues.

7.—Notwithstanding anything in Part III of the Finance (Miscellaneous Provisions) Act, 1956 , no amount receivable from the sale of goods exported out of the State in the course of exempted trading operations shall be taken into account for any Purpose of the said Part III.

1956, No. 47.

8.—(1) Where the trade carried on by a company consists partly of exempted trading operations and partly of other trading operations, the amount of any deduction, being a deduction to which this section applies, to which, but for this section, the company would have been entitled shall be reduced by such amount, if any, as the Special Commissioners consider just having regard to section 4 of this Act.

(2) The deductions to which this section applies are deductions in respect of any allowance under Rule 6 of the Rules applicable to Cases I and II of Schedule D, subsection (3) of section 5 of the Finance Act, 1946 , Part V of the Finance Act, 1956 , or Part IV of the Finance (Miscellaneous Provisions) Act, 1956 , or Part V of the Finance Act, 1957 .

9.—(1) Where a dividend is paid in part out of profits from exempted trading operations and in part out of other profits, Rule 20 of the General Rules and section 5 of the Finance Act, 1940 , shall apply as if the dividend consisted of two dividends respectively paid out of profits from exempted trading operations and out of other profits.

(2) So much of any dividend as has been paid out of profits from exempted trading operations shall not be regarded as income or profits for any purpose of the Income Tax Acts or of the Corporation Profits Tax Acts.

(3) In relation to every warrant, cheque or order drawn or made by a company for the payment of a dividend payable wholly or in part out of profits from exempted trading operations, section 13 of the Finance Act, 1925 , shall apply to the company so that the statement required by that section shall show, in addition to the particulars required to be given apart from this section, either (as the case may require)—

( a ) that the whole of the sum for which the warrant, cheque or order is drawn or made is a payment of a dividend of profits from exempted trading operations, or

( b ) that a part of such sum is a payment out of profits from exempted trading operations and that a part (the gross amount of which, before any deduction in respect of income tax, is separately stated) of such sum is a payment out of other profits.

10.—(1) Where any payment to which this section applies is payable out of the profits or gains of a trade consisting partly of exempted trading operations and partly of other trading operations, there shall be treated as paid out of profits or gains brought into charge to tax only the portion of the payment which bears to the total amount thereof the same proportion as the amount of the profits or gains of the trade actually charged to tax bears to the amount of such profits or gains which would have been actually charged to tax if this Part of this Act had not been enacted.

(2) This section applies to any payment of interest of money, annuity, or other annual payment charged with tax under Schedule D, or of any royalty or other sum paid in respect of the user of a patent.

PART III CUSTOMS AND EXCISE

11.—(1) Save as provided in subsections (7) and (8) of this section, this section applies to goods which have been produced, manufactured, processed or packaged within the airport.

(2) On and after the 1st day of January, 1959, where, in the case of goods to which this section applies and in the course of the production, manufacture, processing or packaging of which, or of anything contained or incorporated therein, any articles, materials or ingredients of a kind liable to a duty of customs or excise were used or packaged, the goods are brought from the airport into any other part of the State, there shall be charged, levied and paid on the goods a duty of customs of an amount equal to the aggregate of the following amounts:

( a ) the amount (if any) of customs duty which would, but for section 14 of the Finance Act, 1946 , have been payable on the bringing into the airport of any such articles, materials or ingredients so used or packaged;

( b ) the amount (if any) of drawback of customs or excise duty paid on any such articles, materials or ingredients so used or packaged brought into the airport from any other part of the State;

( c ) the amount (if any) of customs or excise duty which would, but for section 5 of the Customs-free Airport Act, 1947 , have been chargeable on any such articles, materials or ingredients so used or packaged brought into the airport from any other part of the State;

( d ) the amount (if any) of any export allowances paid on any such articles, materials or ingredients so used or packaged brought into the airport from any other part of the State.

(3) On and after the 1st day of January, 1959, where, in the case of goods to which this section applies which are brought from the airport into any other part of the State, the duty imposed by subsection (2) of this section is paid or is not chargeable, no other duty of customs shall be charged or levied on the goods.

(4) Where, in the case of any article, material or ingredient of a kind liable to a duty of customs used or packaged in the course of the production, manufacture, processing or packaging of any goods to which this section applies and which are brought from the airport into any other part of the State, a licence to import the article, material or ingredient, without payment of duty or on payment of less than the full amount of duty, could, at the time when the article, material or ingredient was brought into the airport, have been granted, the Revenue Commissioners may, on the recommendation of the Minister for Industry and Commerce or the Minister for Agriculture, permit the goods to be so brought from the airport without payment of the amount of any customs duty chargeable under subsection (2) of this section or on payment of such lesser amount as is appropriate having regard to the licence which could have been granted as aforesaid or, where any such duty or part thereof has been paid, repay the amount paid, but where the only such licence which could have been granted was a licence under section 12 of the Finance Act, 1932 , no such permission or repayment shall be given except with the concurrence of the Minister.

1932, No. 20.

(5) Where, in the case of any article, material or ingredient of a kind liable to a duty of customs used in the course of the production, manufacture, processing or packaging of any goods to which this section applies or of anything contained or incorporated therein, the article, material or ingredient could, at the time when it was brought into the airport, have been imported into the State (exclusive of the airport), under any enactment then in force, without payment of duty for use in such production, manufacture, processing or packaging, the Revenue Commissioners may remit the amount of the customs duty chargeable under subsection (2) of this section or, where that duty has been paid, repay the amount paid.

(6) A person who produces, manufactures, processes or packages any goods within the airport shall, unless he intends to export all the goods to a place or places outside the State,—

( a ) maintain records showing—

(i) in respect of any articles, materials or ingredients used or packaged in the course of the production, manufacture, processing or packaging, the date of receipt, from whom and whence received, the value and quantity and, in the case of articles, materials or ingredients so used, the quantity used per unit of the finished goods, and

(ii) in respect of such finished goods, particulars of disposal, including selling price and quantity sold in the case of every sale;

( b ) keep available, for a period of not less than two years, for inspection by Officers of Customs and Excise, such records and all invoices and other documents relating to transactions in any of the articles, materials, ingredients or finished goods; and

( c ) allow Officers of Customs and Excise at all reasonable times to inspect such records, invoices and other documents and to examine and take samples of any of the articles, materials, ingredients or finished goods.

(7) Where, owing to non-fulfilment of any of the requirements of paragraphs (a), (b) and (c) of subsection (6) of this section in respect of any goods brought from the airport into any other part of the State, or in respect of any articles, materials or ingredients used or packaged in the course of the production, manufacture, processing or packaging of such goods or of anything contained or incorporated therein, the amount of the duty chargeable thereon under subsection (2) of this section cannot be determined by the proper Officer of Customs and Excise, this section shall be deemed not to apply to the goods.

(8) This section shall not apply to goods in the production, manufacture, processing or packaging of which were used or packaged, or which contain or incorporate, any articles, materials or ingredients brought into the airport which, but for section 4 of the Customs-free Airport Act, 1947 , would have been subject to quota restrictions, quantitative restrictions or other import restrictions, on being brought into the airport.

1947, No. 5

12.—(1) Where the provisions of section 8 of the Finance Act, 1919, would, in the case of goods referred to in subsection (8) of section 11 of this Act which were consigned from, and produced or manufactured in, the airport, have applied to the goods if they had been consigned from, and produced or manufactured in, the United Kingdom or the Dominion of Canada, those provisions and the regulations relevant thereto shall apply to the goods as if they had been so consigned and so produced or manufactured.

1919, No. c.32.

(2) Where the provisions of section 8 of the Finance Act, 1919, would, in the case of goods consigned from the airport, not being goods referred to in subsection (8) of section 11 of this Act, have applied to the goods if they had been consigned from the United Kingdom or the Dominion of Canada, those provisions and the regulations relevant thereto shall apply to the goods as if they had been so consigned.

1919, c.32.

(3) Where any provisions of the Finance (Agreement with United Kingdom) Act, 1938 , would, in the case of goods referred to in subsection (8) of section 11 of this Act which were manufactured in the airport, have applied to the goods if they had been manufactured in the United Kingdom or Canada, those provisions and the regulations relevant thereto shall apply to the goods as if they had been so manufactured.

1938, No. 12.

13.—(1) If, at any time when a person is accounting to the Revenue Commissioners for goods of a kind liable to a duty of customs or excise on which that duty has not been paid and which he has brought within the airport, such person cannot, as respects some or all of the goods, account for them as having been disposed of in a manner in which he is authorised to dispose of them by or under the Customs-free Airport Acts, 1947 and 1958, and does not show to the satisfaction of the Revenue Commissioners that their absence is attributable to natural waste, accidental destruction or other similar cause—

( a ) such person shall forthwith pay that duty on them at the rate in force at that time, and

( b ) where such person fails, within twenty-one days after receipt of a written demand by an Officer of Customs and Excise, to pay as aforesaid, he shall, in addition, be liable to a Customs penalty of twice the amount payable.

(2) In the case of goods referred to in subsection (1) of this section which have been brought within the airport from outside the State, that subsection shall have effect notwithstanding section 14 of the Finance Act, 1946 .

1946, No. 15.

14.—The duties imposed by this Part of this Act are hereby placed under the care and management of the Revenue Commissioners.