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Dáil Éireann debate -
Wednesday, 21 May 1975

Vol. 281 No. 2

Capital Gains Tax Bill, 1974: Committee Stage (Resumed).

Question again proposed: "That section 17, as amended, stand part of the Bill."

The following is an illustration. In January, 1976 A buys a silver teaset for £1,600. In January, 1980 he sells part of that teaset for £1,000 and six months later he sells the rest to the same person for £1,400. The total chargeable gain is £800, even though neither sale has produced £2,000. The overriding limit on the tax chargeable is £200, that is the £2,400, the global sum received, and the £2,000 limit under section 17. The amount chargeable is allocated, and assuming by 1981 we have not yet changed the tax year, to the separate years of assessment by reference to the proportion of the total sale receipts applicable to each year.

The sale in January, 1980 would be attributable to the year 1980-81 and the gain would be five-twelfths of £800, that is £334. The following tax year, 1981-82, it would be seven-twelfths of £800, £466. When you add those two sums together, £334 and £466 you get the total figure of £800. If the tax chargeable on the two assessments taken together exceeds the overriding limit of £200, which I have already mentioned, the appropriate reduction in the tax would be made in the same proportions. The tax payable in the year 1980-81, assuming the alternative charge which would be applicable, would be £92. In the following year, 1981-82, the tax chargeable would be 26 per cent of £466 or £121, total tax liability of £213. The overriding limit is £200, half of the difference between £2,400 and £2,000 so we deduct that £200 from £213 which gives a figure of £13. The appropriate allocation of tax would be for the year 1880-81, £5 approximately, and for the following year, £8 approximately. Did I say the tax chargeable?

The Minister used words something like that but I think I know what he meant.

I should say the appropriate reduction applicable is £5 in the first year and £8 in the second year. The tax chargeable would be the gross figures I mentioned earlier of £92, less the allowance of £5, leaving a net amount of £87 in the first year. As far as the second year is concerned, 1981-82, it would be £121, less the £8 odd, that is, £113, giving a total for the two years together of £200. If the collection of a set of articles were to be sold in the one year the same distribution would take place but it seems to me it would not have any effect on the taxpayer's net position in the same tax year. The allocation would be a national one if it occurred in the same tax year. It could have significant effects for a taxpayer if the collection was to be sold off in different tax years.

I am grateful to the Minister for that example. I have just two questions as I think I may have missed something he said. Is the fraction five-twelfths related to the value of the two items sold as a proportion of the total value?

That is right.

Did the Minister envisage the sale of the two items in different years, one in 1980 and the other in 1981?

No. I was dealing with different tax years. January, 1980 would be in the tax year 1980-81 and June, 1980 would be in the following tax year.

I missed that. Does the Minister envisage one item being sold in January, 1980 and the other sold later that year?

Sorry, I should have said January, 1981 would be the tax year 1980-81 and June, 1981 would be the tax year 1981-82, that is assuming we have not brought them into line before then.

In the event of the sale of the two items in the one tax year effectively would the same tax be payable?

Yes. I cannot see any circumstance in which it would vary. The Deputy also asks me about the dates. Suppose we have a case in which a person bought a silver teaset in 1970 for £2,000 and on 1st March, 1974, the day after the publication of the Capital Gains Tax White Paper, the person sold part of it for £1,600 and on 1st July, 1974 he sold the rest to the same dealer for £2,000. The part of the teaset sold separately comprised a set and even though neither part realised £2,000 the gain arises on the second stage and is chargeable under subsection (4) because the first stage was paid after the date of the publication of the White Paper on 28th February, 1974. The gain on the first part is not, however, chargeable. Assuming the value of the part retained between the 1st March, 1974 and 1st July, 1974 to have been £1,500 as at 1st March, 1974 the computation would be as follows: sale price £2,000; part cost— that is market value at date of first sale—£1,500; gain on the second sale £500. The charitable gain attributable to the period from 6th April, 1974 to 1st July, 1974, apportioned on a time basis, is £500, multiplied by 3 months over four months, giving us a nett figure of £375. The taxpayer could claim valuation as of 6th April, 1974 if that was to his advantage or if it was not and he wanted to pay the extra tax he could also claim it.

In that case the exemption under section 16 is not available?

Section 16 will still stand on its own. I was simply assuming that the £500 had already been enjoyed.

But if there had been no other gain section 16 would operate?

I thank the Minister for that explanation which I will have to study in the record but I think I have the general drift of it. In relation to subsection (5) would the Minister give an example of how paragraph (a) would operate? I will be asking the same in regard to (b) and (c).

Paragraph (a) deals with two elements of consideration— the actual consideration for part of a property disposed of and the market value of what remains undisposed of. If you take a case of actual value, that is of the part disposed of, at £800 and the balance of the market value is £1,600. That would leave a total of £2,400. If we divide, as required by subsection (b), the actual excess of £800 by the sum mentioned, if we divide the £800 by £2,400, that equals one-third—so the ultimate figure is half the difference between £2,000 and £2,400 or £200 multiplied by the fraction or by the division 3 so that we are left with a figure of £67.

This may seem a silly question, but why? Is there a statistical basis for this?

The answer is yes, but I am sure that will not help the Deputy. The whole purpose of it is to allocate part of the cost to what is left, to what is undisposed of.

Of the original cost?

I take it that subsection (6) is not a relieving subsection?

No, it is not.

In other words, such benefits as are conferred by the section are excluded from the items mentioned in subsection (6)?

May I ask the Minister what is a terminal market?

I asked that question myself. A terminal market is a commodity market. It is a place where goods are distributed on, one might say, a world basis. The disposer has no further control over them. One thinks of some of the great tea, wool and commodity markets of the world. All those are terminal markets.

What is the reason for their exclusion from this?

This is not a section which deals with commodities in the sense in which commodities are understood such as grain and minerals and raw materials. It deals with chattels, and we are distinguishing here between the commodity market on the one hand and chattels on the other.

I do not profess to have any real knowledge of this subject, but I would have thought that transactions in commodities of the kind the Minister has in mind would not normally be in sums of less than £2,000.

No, normally they would be in the ordinary course of trading.

That is why I am wondering about the exclusion here.

If they were not in the ordinary course of trading and were not caught under the income tax code a situation could arise in which they might nevertheless be disposed of and be broken up into separate sections, each worth less than £2,000, to avoid liability to tax altogether.

Presumably in that case the previous subsection dealing with breaking up of a set should apply.

They might not be connected persons. They might not qualify for the description of being a set or a collection.

I am not anxious to be awkward, in fact I would like to help the Minister, but I am a little unhappy about this phrase "terminal market". Is it legally defined anywhere? Is it a sufficiently well-known phrase to be taken unequivocally in a court say in the case of an appeal?

When one avoids statutory definitions one always leaves oneself open to the possibility that a court may take a view different from that intended by the legislature. At the same time, if you give a specific statutory definition to some words you may create results which you never intended either. The words "terminal market" are sufficiently well-known in the ordinary commerical world not to require statutory definition. I am not aware that it has been statutorily defined. If one looks at the more reputable newspapers and journals—I am not excluding any newspaper with which the Deputy might have a connection but I am talking about those which are primarily connected with business affairs. We find the expression "terminal market" quite frequently.

I do not want to labour the point. The Minister being a lawyer will appreciate that in a case like this what the Minister says in perfectly correct. If you attempt to define, as well as defining and making clear you are restricting and perhaps over-restricting. That is the objection to too precise a definition. On the other hand, if you leave open words, unless these open words are clearly of well-known and accepted meaning, you run great risks of interpretation when it comes to the court. It did occur to me, while I agree completely with what the Minister has said here, that perhaps this word was not sufficiently precise in the generally accepted sense. As far as I am concerned, I am easy. I merely raise it as a point that occurs when Deputy Colley asks the meaning of it. I am not making any particular issue of it.

I accept that. I think the word is sufficiently well known in those circles to whom the subsection will apply.

As long as the Minister is satisfied, that is all right.

If difficulties are recognised in practice which lead to injustices, I have no doubt the legislators will correct the matter and, of course, they can always correct it retrospectively. It is not a reason for being lazy now.

It is not a question of laziness. It is a question of judgment.

In relation to paragraph (b), I think I am right in saying that there is a provision in one of the Schedules dealing with money as such. I think the Minister referred to this when he said that gains in these fields did not come within the ambit of capital gains. I am trying to find out what is intended to be achieved by subparagraph (b) where there is excluded from the operation of section 17 "a disposal of currency of any description". What is the thinking behind this?

A coin as distinct from paper money might be considered as currency. I think it is, in fact, currency. The question might be whether it is still in current use or not. That is another issue. That is a matter for fairly easy legal determination. A coin is either currently a coin of the realm or it is not.

The Minister's intention in the subsection is always the thing that matters. I take it it will cover, for instance, a case like this: supposing I have some foreign currency, dollars, francs, kroners, in my possession and sell them for £s. It is a question of what the value is. If you had not a provision like that, that might be a sale in which I could play with the exchange rates. I am being purely theoretical, I know. If it is not that kind of transaction that is in mind, what is the Minister's reason? Nothing is inserted in a Bill without a reason. That can be taken as axiomatic. If the Minister could simply state the reason for inserting paragraph (b) it would help. I am making no issue of it, just looking for clarification.

Foreign currency would be chargeable because it is so provided but any legal tender in this country would not be subject to a capital gains tax in the ordinary way. Foreign currency, something that Deputy de Valera mentioned, would be chargeable.

Therefore, this is to say that it is outside the protection of the section?

That is very simple.

That is the reason.

I am afraid a little more arises than that. It seems to me there are two questions. First of all, there is the actual use of the word "currency of any description". Judging by what the Minister has just said it would seem that he is suggesting that that does not include, say, Irish £s and coins. On the face of it, it does. Perhaps I will raise the other point afterwards, if we could deal with this point first.

Section 7 (b) provides that all forms of property shall be assets for the purposes of this Act whether situated in the State or not, including any currency, other than Irish currency and sterling.

I am sorry. I am still raising the point. If the Minister looks at that again, the paragraph (b) with which we are dealing says "in relation to a disposal of currency of any description". In section 7 we are not defining currency; we are simply saying that all forms of property shall be assets, including any currency other than Irish currency and sterling. I am not sure that it follows automatically that Irish currency and sterling are, therefore, included within the meaning of currency of any description. It may but it is not entirely clear.

I think it is, and if anybody has any cause to complain that this is an effort by the Revenue Commissioners to charge Irish currency the defence would be that section 7 exempts Irish currency and sterling.

As an asset chargeable. On that reasoning one can exclude it but if I was so disposed I could make an argument the other way. I am not so disposed. I am merely trying to clarify the position.

The other question arising on this is: if we assume that somebody has some coin of foreign denomination, certainly not of legal tender, which acquires considerable value, we will say, by reason of scarcity or some other reason, and he disposes of it and as a result has a gain, we will assume, of £1,000, as I understand it, the effect of this subsection is that he would be liable for capital gains tax on that £1,000, perhaps subject to the section 16 provision of £500. What I want to know is, why in that case does he not get the benefit given in section 17 to somebody disposing of tangible movable property where the consideration does not exceed £2,000. What is the thinking behind it.

The reason behind it is that obviously foreign currency in many circumstances and for many people can have liquidity value just as good as the legal tender of this realm. Its very ease of handling would provide a very convenient way of avoiding liability to tax. It is of interest that in other countries it has been considered desirable and necessary to treat currency in this way because it is such a fluid asset that people of substance could very easily use it as a vehicle to avoid liability.

The effect of subsection (6) (b) is to remove currency from the exemption of section 17. Therefore it is chargeable unless it is exempted in some other way. That is why I said earlier that, as section 7 exempts Irish currency, there cannot be any question of its applying to Irish legal tender.

I take it the intention is not to give the benefit of the relief in section 17 to dealings in currency and in foreign exchange markets. I understand that and I go along with it. It would seem on the face of it that in doing that the Minister is also excluding from the benefit of section 17 the sale of old coins. As he knows there are a number of people who have this hobby and would perhaps engage in it not in a big way of business. They would appear to be excluded from the benefit which is applied to other movable property. I am wondering if it would not be possible to distinguish between foreign currency which is legal tender and the kind of coins I have in mind which, if they have real value, are not legal tender presumably.

It is of the essence of currency that it must be legal tender. On the other hand, coins may not be legal tender and if they are not legal tender they would be treated as chattels.

They would be automatically excluded.

If I might be facetious, does this exclude the proverbial buttons?

Buttons are chattels, tangible and sometimes embarrassingly movable.

Question put and agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

This section, as is apparent, provides that no chargeable gain and hence no allowable loss is to accure on the disposal of non-business wasting chattels. A wasting asset is one with an expected useful life not exceeding 50 years. Assets covered by the exemption include bloodstock, private motor cars, household furniture other than antiques and domestic appliances. A business asset, to the extent that it has not been used in business or has not qualified for capital allowances, will be exempt and the appropriate part of any gain on the disposal of it will not be a chargeable gain and correspondingly the appropriate part of any loss will not be an allowable loss. The section does not apply to commodities or commodity futures, to use another word from the trade journals.

I presume the Minister appreciates that there is plenty of scope for litigation in the definition of what are and what are not wasting assets. I am speaking of things other than those which could fairly clearly be identifiable as business assets. The Minister mentioned bloodstock and private motor cars. I take it that it would be bloodstock which is not a business asset?

The position of bloodstock which is not a business asset would be that any gain made on a disposal would not be liable to capital gains tax and any loss would not be allowable against capital gains tax. Is that the position?

That is right. Wasting assets are defined, as the Deputy will recall, in paragraph 8 of the First Schedule on page 50.

It is also referred to in the Third Schedule.

That is in relation to leases.

Land is a wasting asset.

Freehold land is not a wasting asset but other land may be.

We are going ahead with this whole scheme of legislation and you cannot incise at one spot and make a change. I appreciate that. The net effect is that we are giving judicial discretion to the Revenue Commissioners. That is what we are doing and that is what we are prepared to do because it is necessary for them to make judgment. In the past I would have opposed a simpler Bill but now that I see the alternative and find that not only is it tying up many people but it is also tying up the Revenue Commissioners themselves, I wonder could we have a simpler approach to all this legislation at a later stage. That is not quite relevant to the section, I know, but I am prompted to make that remark because in dealing with wasting assets and definitions of that nature, as Deputy Colleys says, there is ample scope for dispute.

Of course, the good Lord was able to draft rules for mankind in as brief a text as the Ten Commandments because he had the ultimate sanction of eternal punishment, but because legislators have not that sanction available to them they have to provide the rules necessary to ensure that people conform to the law while they are alive.

I do not want to be hard on the Revenue Commissioners but they have the sanction of perpetual punishment.

It is terminable by getting rid of your assets.

It is too late then.

Question put and agreed to.
NEW SECTION.

Amendment No. 21 was discussed with amendment No. 13.

I move amendment No. 21:

In page 20, to insert the following section before section 19:

"19. The following shall not be chargeable assets—

(a) securities (including savings certificates) issued under the authority of the Minister for Finance;

(b) stock issued by any of the following authorities—

(i) a local authority; (ii) a harbour authority mentioned in the First Schedule to the Harbours Act, 1946;

(c) land bonds issued under the Land Purchase Acts; and

(d) debentures, debenture stock, certificates of charge or other forms of security issued by the Electricity Supply Board, Córas Iompair Éireann, The Agricultural Credit Corporation, Limited, Bord na Móna, Aerlínte Éireann, Teoranta, Aer Lingus, Teoranta or Aer Rianta, Teoranta."

Because of the nature of the discussions on this Bill and the interruptions of those discussions from time to time, it is difficult to remember but I do not recall discussing it with amendment No. 13. I am not disputing it, but I just do not recall it. Perhaps the Chair will bear with me for a moment.

Acting Chairman

A series of amendments was discussed.

There were eight connected amendments.

I cannot recall whether I raised some points which I wanted to raise on this amendment. I do not think I did. Am I entitled to ask the Minister some questions about the amendment at this stage?

Acting Chairman

The Deputy is entitled to ask the Minister some questions.

I want to ask him first if he will tell us the difference between this and section 19 which he proposes to delete and I want also to refer him to the associated amendment to which the Chair referred, No. 13, which inserted in section 7 the following:

If under this Act an asset is not a chargeable asset then no chargeable gain or allowable loss shall accrue on its disposal.

This is relevant, although it may not appear to be, to this amendment and I would like to refer the Minister to section 24, subsection (5) which reads:

If under this section an asset is not a chargeable asset then no chargeable gain or allowable loss shall accrue on its disposal.

Perhaps later on the Minister proposes to delete that but I have raised a note for myself on this amendment as to why a similar provision to this was not being included. I see that it is included on a general basis in No. 13. If it is, it would seem that the provision to which I was referring in section 24 (5) is superfluous, unless the Minister is subsequently proposing to delete it. Yes, I see he is and I withdraw it.

I want to ask the Minister in relation to this amendment if he could tell us the difference between this and section 19 which he proposes to delete and further is it the position that under this amendment losses incurred in relation to the items mentioned would not be allowed and in particular losses incurred in relation to land bonds would not be allowed?

Answering the Deputy's last question first, the Deputy is correct in his assumption. He will recall that there are eight related amendments which we took when we were discussing amendment No. 13 when section 7 was being amended. This section 19 brings in a revised section and, taken together with the amendment of section 24, involves no more than a rearrangement of the sections and is designed to give a better presentation without changing their effect. The essential provisions of section 24 which related to Government issues include saving certificates and land bonds and they are being transferred to section 19 which now covers all securities issued under the authority of the Minister for Finance. This enables the provisions of section 19 to be expressed in a more comprehensive manner and eliminates the need for a definition of specified securities and also, indeed, the whole of Schedule No. 4 which consisted of a list of specified securities.

I take it that no additional items are being included and no items which were in any section or Schedule are being omitted?

Not by virtue of this amendment or related amendments.

Amendment agreed to.

That automatically deletes section 19 and substitutes this?

Acting Chairman

That is correct.

We are inserting a new section which becomes the new section 19 and that has the effect of deleting section 19.

SECTION 20.

Question proposed: "That section 20 stand part of the Bill."

Mr. Ryan

This section deals with gains or losses on the disposal of an interest in a life assurance policy or contract for a deferred annuity on the life of any person where the person making the disposal is the original beneficial owner of the policy any gain accruing on the disposal will not be a chargeable gain and consequently any loss will not be an allowable loss. This exemption does not extend to gains or losses on disposals by persons other than the original beneficial owners and in that case the value of linked investments will be included in the charge.

The remainder of the section, I take it, is merely to exclude trading in such matters?

That is the intention of the section?

The intention is to exclude from capital gains being chargeable these superannuation funds but the other provisions there are to charge what one might call trading in superannuation funds as a commodity?

That is right.

Another Deputy received a letter in regard to this section which he passed on to me and if I may quote briefly from the letter, I think it exemplified the point raised which is of some importance. The extract is:

As may be appreciated, when arranging life insurance on two partners who have families, it was normal up to now to arrange life policies on the individual partner's lives and then cross-assign both policies. For example, Partner A might take out a £20,000 life policy on himself and assign his policy to Partner B, and vice versa. In the event of the death of Partner A, the experts deem that the funds are in the right hands, namely, in the hands of the surviving partner who can either buy out the deceased partner's widow or purchase an annuity for her.

My question is—am I correct in reading that the partner making the disposal is not the original beneficial owner in the above arrangement and that the proceeds of the policy would be subject to capital gains tax under this Bill, even though the proceeds might be entirely for the benefit of the widow and children.

In the case of policies taken out after this Bill becomes law there is no difficulty as matters can be rearranged until the law is given another twist. But in the case of existing arrangements, if I am reading the above section properly, this tax would be absolutely vicious.

I wonder if the Minister could throw some light on that?

Something similar was received by the Minister and I have had the matter considered by the Revenue Commissioners, and I may say that generally speaking genuine arrangements such as that which is spoken of there are not intended to be caught. I certainly would very carefully consider the position because I would not consider it desirable that such an arrangement should be caught. However, at this stage I would not want to be specific as to whether it is exempted as it stands but I will certainly look at it between now and Report Stage.

We can take it from what the Minister says that that kind of case would not be intended to be caught and if the Minister is not satisfied that such a case would not be caught he would endeavour to amend the section to ensure that it would not be?

Yes. In the case of a genuine cross-assignment of policies to protect against the difficulties which can arise in partnerships, I would be disposed to consider the possibilities of an appropriate amendment, if it be necessary.

The Minister's attitude is the right one and we look forward to seeing what he has to say in regard to this section on the next Stage. Another Deputy has received representations in regard to subsection (4).

Am I the other Deputy?

Perhaps the Minister received the representations also. I do not think the person who made the representations is correct but I should like to put it to the Minister to get his confirmation that this person is not right. The simplest way is to quote from the letter to the Deputy:

I do not know whether or not you appreciate this but the position is that practically everybody rich, poor and middle class who took out an insurance policy in this country over the last five years took one of these unit trusts or property module policies. The maturity value of insurance policies is bad enough at the moment, but if this profit is going to be subject to capital gains it is going to be a serious matter for thousands of people especially people like Bord na Móna workers and building workers. The Government may say that if they exempted this type of policy that the rich could then avoid capital gains by investing in such policies but the way out of that is the simple one, by exempting all unit trust policies and property module policies which have been taken out to date.

This is in relation to the provision of subsection (4) which states:

In subsection (3) the reference to payment of the sum assured shall include a reference to the transfer of investments or other assets to the owner of the policy in accordance with the policy.

My own reading of this is that the section will only apply where the rights under the policies, for instance, in property module policies, have been sold. Therefore, the case made in the letter I quoted does not seem to be correct, but I should like to have the Minister's confirmation of that.

My interpretation is the same as the Deputy's.

Question put and agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."

This section exempts from capital gains tax approved superannuation funds to the extent that income from the investment funds is exempt from income tax. Any gains of the fund are exempt. I should like to mention that the Houses of the Oireachtas pension scheme is also exempt.

Subsection (1) is understandable because these pension schemes are all regulated under these Acts. I have not inquired too closely as to why it is necessary to have sub-section (2) but the fact that it is there leads me to ask this question: What is the position with regard to public service pensions? They seem to be in between. Are they covered by sub-section (1)? If they are not what is the position in regard to them?

The reason for the presence of subsection (2) is because the fund referred to in subsection (2) is not covered by any of the schemes mentioned in subsection (1). The reason why public service pensions are not mentioned is because there is no fund out of which public service pensions are paid. They are paid out of the Exchequer generally and not out of a specific pension fund. There is no specific scheme, but where there are specific schemes they would be protected by these sections. The right to public service pensions is not related to the existence of a fund.

I want to be sure that the public service would not be at a disadvantage here. A matter came up under a Finance Act many years ago which, unfortunately, resulted, through mechanics, in a disimprovement in the position of the public service pensions. So long as the point has been adverted to and that they are not adversely affected by this Bill I am happy.

I can give that assurance to the Deputy. A public service pensioner has not got an asset that he can sell and there cannot be a question of the disposal of any investment funds by him. I can assure the Deputy of that.

I should like to raise a point in regard to the proviso to sub-section (1) which reads:

Provided that where part only of a fund is approved under any of the said sections, the gains shall be exempt from being a chargeable gain to the same extent only as income derived from the assets would be exempt under the relevant section under which approval was given.

I am not sure whether the Minister is aware of this but my understanding is that the Revenue Commissioners have approved of a number of superannuation schemes in the private sector for the purpose of income tax allowances. One of the conditions applied by the Revenue Commissioners to that approval in that such schemes may not provide for increasing pensions to meet inflation at a higher rate than 5 per cent per annum. The Minister does not have to be told that such a provision is out of date and, in so far as one can arrange a scheme that would provide for current inflation, one ought to be able to do so. I am not raising with the Minister the question of income tax allowances in respect of such but I am raising the question of the effect of this proviso on such schemes.

It seems to me that the effect of the proviso is that in so far as a scheme might provide for increasing pensions in line with inflation at the rate of say 10 per cent per annum that portion of that fund would be excluded from the benefit of this section and would be liable to captial gains tax. If I am right in that assumption I suggest to the Minister that that is not a provision we should have and it is not one that could be justified.

I think the Deputy would accept that if an amendment is required to the superannuation fund scheme in relation to the Income Tax Acts that, as he anticipated, it is not a matter for this Bill. If an amendment is required because the rate of inflation is higher than 5 per cent it is required for income tax as well as capital gains tax purposes. This is something I will look at, and I can assure the Deputy of that. I will also give an assurance that it is our determination in Government to rectify the present inflationary trend which is so harmful to many aspects of life, not least to the value of pension funds.

As a matter of general guiding principle with reference to the section I should like to add that it is highly desirable that trends in dealing with inflation should be the same all over the community, in the private as well as the public sector. There should not be too great a discrepancy between provisions in the public sector from provisions in the private sector. I ask the Minister to bear that in mind for a variety of reasons that I would be out of order to give now.

I would agree entirely.

I will not engage in any comment on what the Minister has said about the Government's efforts to combat inflation. All I will say is that the Minister, I am certain, will agree with me that even with the maximum and most successful efforts on the part of the Government it is extremely unlikely that inflation would be reduced to a figure of 5 per cent per annum for some time to come. That being so, the point I raised, I believe, is of some urgency. While I appreciate that, if you like, from a technical point of view, an amendment of the regulations in regard to the Income Tax Acts would automatically cure the problem here, nevertheless, since I would not be in order in pursuing the Income Tax Act end of it, I have to pursue it on this proviso. Therefore, I want to be quite clear on my understanding of what the Minister said. Perhaps he would confirm that I am correct in thinking that what he said was that he would look into the question I raised; that if he finds the position is as I have indicated he would have the regulations altered in regard to the Income Tax Acts so as to allow for the current rate of inflation and that that would automatically cure the problem in regard to the proviso in subsection (1).

The Deputy will appreciate that I would not be in a position to give an undertaking as to what amendments might or might not be made in the existing law or regulations made thereunder. But I will certainly examine the existing provision in the light of what the Deputy has argued here and have indicated my readiness so to do. If and when any change is made there, it would, by virtue of section 21, apply automatically to the capital gains law.

I know the Minister cannot reasonably be tied to a date on this matter but could he give an indication of when he thinks he might be in a position to take a decision on this question?

As soon as I have completed consideration of it, but I would not like to say when that would be.

I am not trying to push the Minister on this. But I do not feel happy about allowing this proviso to go through without having some indication that the matter will be dealt with, whatever way it will be dealt with, even if the decision is to leave the position as it obtains; but that whatever decision is made would be made within a reasonable time. I also want to leave it open to myself to come back to the Minister on this, if necessary.

I think the Deputy is ensuring that.

I take it that at least, when we come to the next Stage, if the Minister does not have an amendment down—no, he would not be amending this—we could at least ask him, I presume, at that stage whether he has made a decision and, if he has not, then we shall have to pursue him under the Income Tax Acts.

Is the section agreed?

Agreed, subject as indicated.

Question put and agreed to.
SECTION 22.
Question proposed: "That Section 22 stand part of the Bill."

I think this is self-explanatory.

I take it the intention of the section is to exempt charities but to provide against the conversion of a charity into a non-charity and getting away with it?

That is correct.

The first point I want to raise on this is in regard to sub-section (2). It is perhaps a rather technical point but, if possible, I should like to have it clarified. Sub-section (2) commences:

If property held on charitable trust ceases to be subject to charitable trust——

then certain things happen. It is in regard to the use of the word "ceases" that I raise this point. It seems to me that it could happen that property could momentarily cease to be subject to certain charitable trusts before becoming subject to new charitable trusts. What I want to ensure is that, in such circumstances, the use of the word "ceases" would not operate to introduce the provisions of subparagraphs (a) and (b) and that the property would still be treated in the same way as it had been before the first charitable trust had momentarily ceased and almost immediately afterwards been replaced by new charitable trusts. I admit it is a purely technical point.

It is, I think, so technical that we cannot deal with it in legislation. If any case of hardship arose, it could be looked at on its merits. The purpose of subsection (2) is to prevent avoidance by the use of timed charities, or charitable trusts, set up for a limited period only. When the assets cease to be subject to the trust, they are deemed to have been sold and immediately reacquired by the trustees for a consideration equal to the market value, any resulting gain not being allowable for exemption. Furthermore, any area of gain which had not been applied for charitable purposes would become chargeable and assessments made at any time not later than ten years after the end of the year of assessment in which the assets ceased to be subject to charitable trusts. I am not quite certain what Deputy Colley has in mind when he visualises an existing trust which temporarily would not have any beneficiaries. Obviously, there would be a right open to some person or persons to enjoy benefit of the trust at some time. The mere fact that they were not in current receipts of it would not mean that the trust did not exist.

The kind of thing I had in mind was this: where property is subject to a charitable trust and the charitable objects of the trust cease to exist—an out-of-date charitable trust; it happens from time to time— the Commissioners of Charitable Donations and Bequests have certain powers in this regard to substitute new objects or, perhaps, the courts in certain circumstances. All I am concerned about here is to ensure that, in such circumstances, there is not at any point in time a cessation of the charitable trust because, if there is, it seems to me that the use of the word "ceases" can create a problem that was not intended. It is a technical point. I am drawing the Minister's attention to it and I do not except him to pronounce on it here but I would ask him if he would have it examined. If there is nothing in it, well and good but, if there is, I am sure he would want to take steps to remedy it.

I agree with the Deputy and I thank him for his remarks.

With regard to subparagraph (b) would it be possible to give an example?

Yes, I think what is in mind here is that the trustees might still remain in possession of certain assets which had not been disposed of at market value and, if ultimately disposed of, the proceeds of which would be deemed, at that stage, not to have accrued to the charity but to the trustees themselves.

Accrued to the trustees themselves?

Might I ask why, at the end of subparagraph (b) it says:

. . . an assessment to capital gains tax chargeable by virtue of paragraph (b) may be made at any time not more than ten years after the end of the year of assessment in which the property ceases to be subject to charitable trust.

I appreciate there may be a good reason but it seems a very long time during which an assessment might be made. As the Minister will appreciate, the possibility of such an assessment arising could create a number of problems either for the sale or the purchase of property. For instance, what would be the position of a purchaser for value after five years? Would he be taking on a contingent liability, that the Revenue Commissioners might be going after the property, or would they be confined to the proceeds of sale as received by the trustees?

The ten-year period is the existing period under which the Revenue Commissioners may make an assessment——

For income tax purposes?

Yes. Of course, capital gains is related to income tax and it is considered appropriate that similar disciplines should apply. With regard to the second part of the Deputy's question, a purchaser of the value would not be affected.

Would the revenue apply only to the proceeds received by the trustees?

Question put and agreed to.
NEW SECTION.

I move amendment No. 21a:

In page 21, before section 23, to insert the following section:

23.—(1) A gain shall not be a chargeable gain if it accrues to—

(a) a registered trade union to the extent that its income is exempt from income tax under section 336 of the Income Tax Act, 1967,

(b) an unregistered friendly society whose income is exempt from income tax under section 335 (1) of the said Act, or

(c) a registered friendly society whose income is exempt from income tax under section 335 (1) of the said Act,

(d) a local authority,

(e) the Central Bank of Ireland,

(f) a health board,

(g) a vocational education committee established under the Vocational Education Act, 1930, and

(h) a committee of agriculture established under the Agriculture Act, 1931.

(2) In this section "local authority" has the meaning assigned to it by section 2 (2) of the Local Government Act, 1941, and includes a body established under the Local Government Services (Corporate Bodies) Act, 1971.

During the course of this Committee Stage debate reference was made to the definition of a local authority. The definition in the Bill has been reexamined and it has been considered that it should be amended to bring it into line with what is used generally. The definition now proposed is based on that contained in the Local Government Act, 1941, which is as follows:

(2) Each of the following bodies (whether corporate or unincorporated) shall be a local authority for the purposes of this Act and the Acts which may be collectively cited with this Act, that is to say:—

(a) a council of a county, a corporation of a county or other borough, a council of an urban district, a public assistance authrity, commissioners of a town, a port sanitary authority, and

(b) a committee or joint committee or board or joint board (whether corporate or unincorporated) appointed by or under statute to perform the functions or any of the functions of any of the bodies mentioned in the immediately preceding paragraph of this sub-section, and

(c) a committee or joint committee or board or joint board (whether corporate or unincorporated) other than a vocational education committee or a committee of agriculture of or appointed by one or more of the bodies mentioned in paragraph (a) of this subsection.

That section would exclude vocational education committees and local committees of agriculture which it was intended should be exempt from tax and, accordingly, these bodies have to be named specifically. In like manner, the regional health authorities are specifically named because, under the Health Act, 1970 the health service ceased to be part of the function of local authorities.

In making these adjustments opportunity was taken to rearrange the section and instead of saying that a particular body is exempt from capital gains tax it is provided that any gains accruing to such bodies will not be chargeable gains. This will have the same effect as saying the bodies themselves are exempt. The wording now proposed corresponds with that used in relation to exemptions given in other sections, for example, section 21 deals with superannuation funds, section 22 deals with charities and section 24 deals with miscellaneous exemptions for certain types of property.

The wording is improved in the amendment because all kinds of questions were raised with the section as originally drafted. It said a local authority should be exempt from gains tax and it listed other bodies that would also be exempt. It stated that the Central Bank should be exempt from tax in respect of chargeable gains accruing to it. One wondered what the Minister had in mind. The amendment now presents the position more clearly and unambiguously.

However, there are one or two points I should like the Minister to clarify. The amendment states:

(a) a registered trade union to the extent that its income is exempt from income tax under section 336 of the Income Tax Act, 1967.

Would the Minister indicate broadly the provisions of that section in relation to a trade union and its liability for income tax?

Section 336 of the Income Tax Act, 1967 states:

A registered trade union which is precluded, by statute or by its rules, from assuring to any person a sum exceeding £600 by way of gross sum, or £250 a year by way of annuity, shall be entitled to exemption from tax under Schedules A, C, and D in respect of its interest and dividends which are applicable and applied solely for the purpose of provident benefits.

In this section, "provident benefits" includes any payment, expressly authorised by the registered rules of the trade union, which is made to a member during sickness or incapacity from personal injury or while out of work, or to an aged member by way of superannuation, or to a member who has met with an accident, or has lost his tools by fire or theft, and includes a payment in discharge or aid of funeral expenses on the death of a member, or the wife of a member, or as provision for the children of a deceased member.

I thank the Minister. It would seem what is involved in the section are the activities of a trade union in so far as they relate to a form of assurance or insurance for the members under the different headings indicated by the Minister in his quotation. Does it follow from that that income of a trade union for any other purpose is liable to income tax? If so, how can that be applied to capital gains tax in the way it is stated here, that it is exempt from capital gains tax to the extent that its income is exempt? I am not clear how that can be applied. If a trade union makes a capital gain, how do you apportion it between one kind of income which is exempt from income tax and the rest of the income?

Section 336 of the 1967 Act clearly states that the exemption is in respect of "interest and dividends which are applicable and applied solely for the purpose of provident benefits." Similarly section 23 (2) (a) by confining the exemption to "the extent that its income is exempt from income tax under section 336 of the Income Tax Act, 1967", ensures that the exemption does not extend beyond the provident benefits element of the interest and income of a trade union.

(Dublin Central): Will the Minister state what type of income is exempt for the unions?

Only such income as is applied solely for the purpose of provident benefit, the provident benefit being, as set out in section 336 of the 1967 Act:

. . . any payment . . . made to a member during sickness or incapacity from personal injuries or while out of work . . .

and so on.

(Dublin Central): If a union derive an income from, say, a dance hall, is the profit involved exempt although it is being paid to members in respect of sickness benefit, for instance?

If the benefits are used for the purposes stated in section 336 of the 1967 Act, they are exempt, but if the assets were to be broken up and distributed among the members for purposes and causes not related to that section, the exemption would not apply.

(Dublin Central): May we take it, then, that if property within a trade union is sold, the proceeds would not be subject to capital gains tax?

No. I am saying that if they were sold and distributed among members who did not qualify in accordance with the conditions set out in section 336, capital gains tax would apply, but if the money were provided for the provident benefit as set out in the section, capital gains tax, like income tax, would not apply. This is long established legislation. It has been on the stocks since 1918.

(Dublin Central): Is it the position, then, that a trade union can become involved in real estate business and not be subject to capital gains tax provided they do not distribute funds privately but keep them within the union for the benefit of their members?

The profits would be exempt only if used for the purposes as set out in the 1967 Act.

(Dublin Central): I see the point. I get the impression that the unions can deal legitimately in real estate provided they keep the money in a fund for their members in which case they would be exempt from capital gains tax.

Yes, if the rules of the union so allow.

The Minister may correct me if I am wrong but I understand that if a trade union were to devote, say 50 per cent of their income from whatever source to the purposes described in section 336 of the 1967 Act, that 50 per cent would be exempt from income tax and, further, if the union disposed of their headquarters in order to buy another and made a substantial capital gain, they would be liable to capital gains tax only on half of the gain because they were devoting half of their income to the purposes set out in the 1967 Act.

Or, if they devoted all of their income to those purposes they would pay no capital gains tax on any gain which might result, be it from office blocks or otherwise. That would seem to be the effect of this provision.

Would the Minister give us an example of what is involved in paragraph (b), an unregistered friendly society whose income is exempt from income tax under sec-335 (1) of the 1967 Act and, also, paragraph (c), a registered friendly society whose income is exempt from income tax under section 335, (2) of the 1967 Act?

Section 335 of the 1967 Act says that:

An unregistered friendly society whose income does not exceed £160 shall be entitled to exemption from tax, and a registered friendly society which is precluded, by statute or by its rules, from assuring to any person a sum exceeding £300 by way of gross sum, or £52 a year by way of annuity, shall be entitled to exemption from tax under Schedule A, C and D.

That covers both paragraphs (b) and (c) to which the Deputy referred.

I do not think that the £160 limit in respect of an unregistered friendly society would present any major problem.

It was considered a major problem in 1918 when the Act was introduced.

The registered friendly societies might present more of a problem in that the rule prevented them from assuring sums greater than a certain limit.

A limit of £1,000.

Is it possible that a registered friendly society under one rule would be prohibited from insuring sums greater than £1,000 while, under other rules, they would be entitled to engage in various money-making activities and merely, by having a rule prohibiting the assuring of a sum in excess of £1,000, might be able to escape liability for capital gains tax?

We closed all those loopholes in last year's Finance Act. The Deputy will recall that we had discovered a tendency to create friendly societies for obvious tax avoidance purposes.

This reference is only to the 1967 Act.

But, as amended. However, I shall look at the points the Deputy makes, but I would remind him of the terms of the 1973 Act whereby registered friendly societies were made liable to tax unless established for a purpose other than the purposes of section 8.

How can the 1973 Act apply to paragraph (c)? Is it imported automatically?

Yes. The 1973 Act amends section 335 of the 1967 Act.

Is the Minister sure of that? Does his copy of the section show the amendment made by the 1973 Act? If it does, I would have some doubts about the section.

Section 7, sub-section (6), page 6, of this Bill says:

Reference to this Act in any enactment shall, unless the context otherwise requires, be construed as references to that enactment, as amended or extended, by any subsequent enactment.

I am afraid that does not quite cover the point: does the 1973 Act specifically amend section 335 (2) of the 1967 Act because, if it does not, I do not think the definition carries any significance in relation to this matter?

I am satisfied it would be applicable, even if it does not specifically refer to it, because the right to enjoy exemption is taken away by the Finance Act, 1973, where arrangements are made for tax avoidance purposes. I will certainly look into the point the Deputy makes.

I would appreciate it if the Minister would. It may be all right but, if it is not, there is a major loophole involved here. Another point I should like to put to the Minister on the section is that, having regard to the various exempted bodies envisaged in this section, does the Minister think there might be a case for considering exemption in the case of a registered political party which, whatever it is in business for, is not in business for making money?

This is a matter which would come up for consideration primarily in relation to the Income Tax Act and not in relation to this Capital Gains Tax Bill. Incidentally, if I might refer to an earlier point, section 44 of the 1973 Finance Act, to which I referred specifically, makes reference to section 335 of the Income Tax Act, 1967. The words are "is hereby amended by the addition thereto of the following subsections."

That covers it.

(Dublin Central): With regard to making exemptions for political parties, the Minister has already stated that trade unions are exempt.

I emphasised that they would not be exempt if they applied their profits for political purposes.

(Dublin Central): I know that. That is what I was going to say. They are quite legitimate in doing real estate business or any type of business provided they apportion their funds to the particular items mentioned in the Finance Bill. Are their funds exempt also as political parties and are the funds trade unions give to political parties exempt under the Income Tax Act?

No. The exemption is only where the money is expended for the provident purposes set out in the previous Acts. If trade unions apply their funds to achieving political purposes and not for the benefit of members or in the circumstances set out in the Act they would not be exempt from income tax and they would not be exempt from capital gains tax.

(Dublin Central): But there is no provision whereby they must distribute this money. They could build up huge funds and go into business in a very big way.

The Income Tax Acts are not being changed by this. We are simply applying the same disciplines and exemptions as applied under the income tax code for capital gains tax purposes. The Acts are very clear and if money is applied to purposes other than those mentioned then the exemption in regard to income tax and capital gains tax would not be enjoyed by trade unions.

I am thinking of a situation which occurred within the last few years. It does not happen very often and, in relation to my party, I do not visualise it ever happening and I doubt if it would happen in relation to the Fine Gael Party, but I think the Labour Party within the last few years found itself in the position that it had to dispose of its headquarters and acquire another premises. I am not very familiar with the details though I did see some reference to it in the newspapers at the time and my recollection is that they made a fairly substantial capital gain. It would seem to me wrong in those circumstances, had this Bill been in operation at the time, that the Labour Party would have been subject to capital gains tax. Whatever the objectives of a registered political party may be they are certainly not to make money. As I say, this does not happen very often but, if it were to happen, it would not seem to me to be right; indeed, it would be contrary to what is envisaged in the section with regard to different kinds of trade unions, registered friendly societies and so on, subject admittedly to the conditions laid down. Would the Minister agree with me in principle on that?

It does not come up for consideration under this particular Bill.

But it could.

No. Secondly, it is a well established practice that the financial circumstances of any particular person or group should not be discussed in public and I would not consider it appropriate to comment on the illustration Deputy Colley used any more than it would be proper for me to comment upon the desirability of liability of the Fianna Fáil Party to capital gains tax, or otherwise, on sales of shares or securities they might hold. There may be a case under the Income Tax Act and ultimately through this particular section by translation into capital gains tax for some consideration in respect of money devoted towards the achievement of legitimate political aims but this, of course, introduces a huge area for argument as to what political aims are.

That is why I said a registered political party. It avoids that issue.

I doubt whether the qualifications of registration would necessarily be the most appropriate ones for tax exemption, but it is outside the ambit of this particular Bill. It is something that could be looked at on another occasion. Nobody is enjoying exemption in respect of moneys devoted to political purposes under the law as it stands.

I am not suggesting they should. What I am suggesting is that a registered political party which found itself in the position in which the Labour Party found itself a few years ago when it was obliged to dispose of its existing headquarters and purchase another should not be subject to capital gains tax provided the gain involved was used for the purpose of that registered political party. I would suggest this is within the scope of the Bill to the extent that consideration should be given to whether this section should have added registered political parties to the list of bodies exempt from capital gains. I am not pushing this. It is certainly not an acute problem. It is a problem that may not arise for a very long time for any political party but, if it should arise, it is a question whether capital gains tax should be levied in such circumstances when it is not being levied on the bodies listed in the section.

It could be deemed to have a roll over effect if another asset similar to the asset disposed of was purchased.

(Dublin Central): Would not that be on the basis that the party was involved in trade?

In the same line of business.

If it was a business at all.

The party rolls over. Amendment agreed to.

Acceptance of this amendment involves the deletion of section 23 of the Bill.

SECTION 23.

The Minister does not propose moving amendment No. 22 since it was related to section 23.

Amendment No. 22 not moved.
Section deleted.
SECTION 24.

I move amendment No. 23:

In page 21, lines 33 to 39, to delete subsection (1).

This amendment has already been discussed with amendment No. 13.

This is one of the eight related amendments we discussed earlier.

Amendment agreed to.

I move amendment No. 24:

In page 21, subsection (2), lines 44 and 45, to delete paragraph (b) and to substitute the following paragraph:

(b) prizes under section 22 of the Finance (Miscellaneous Provisions) Act, 1956.

This amendment was disposed of with amendment No. 13.

Amendment agreed to.

I move amendment No. 24 (a):

In page 22, to insert the following subsection after subsection (4):

(5) (a) No chargeable gain shall accrue on the disposal of an interest created by or arising under a settlement (including, in particular, an annuity or life interest, and the reversion to an annuity or life interest) by the person for whose benefit the interest was created by the terms of the settlement or by any other person except one who acquired, or derives his title from one who acquired, the interest for a consideration in money or money's worth, other than consideration consisting of another interest under the settlement.

(b) Subject to paragraph (a), where a person who has acquired an interest in settled property (including in particular the reversion to an annuity or life interest) becomes, as the holder of that interest, absolutely entitled as against the trustee to any settled property, he shall be treated as disposing of the interest in consideration of obtaining that settled property (but without prejudice to any gain accruing to the trustee on the disposal of that property deemed to be effected by him under section 15 (3)).

The purpose of this amendment is to provide that there will be no charge to capital gains tax where a beneficiary under a settlement disposes of his right or interest, including an annuity, a life interest or a reversionary interest before the right or interest terminates. It will be noted that under subsection (4) of section 24 the disposal of certain other rights will not give rise to a charge on gains. These are rights to benefits under a superannuation fund, to an annuity or to annual payments due under a covenant. A right to benefits under a settlement is of a similar nature to these. Without the proposed amendment the disposal of such a right would, under the general provisions of the Bill, be regarded as the disposal of an asset, the right being an asset separate and distinct from the underlying assets of the settlement.

In normal circumstances the right would have been acquired free of charge so that the consideration for the disposal would have to be regarded as all gain while in addition there would be a charge under section 15 on the trustees based on the market value of the assets on the termination of the particular interest disposed of. The proposed amendment postpones the charge to tax until the particular interest terminates. At that time there will be a charge on the trustees if another interest is created and the assets remain in the settlement or if some person become absolutely entitled to the assets and they leave the settlement. This is in accordance with the general scheme proposed in section 15 for dealing with assets comprised in a settlement. If the person who acquires the absolute entitlement to the assets is the person who acquired the vendor's interest in the settlement and if he acquired that interest for a consideration in money he will be treated as disposing of the interest in exchange for the assets and he will be charged to capital gains tax by reference to the difference between the market value of the assets, which he acquires, and what he paid for the right to acquire them.

As I understand it the amendment is in relief of certain kinds of taxpayers but I am not entirely sure it is consistent with the rest of the provisions of the Bill. I am not saying it is not but I am not entirely sure that it is because, as I understand it, the Minister said it was dealing with a situation which was analogous to the kind of situations dealt with in subsection (4), that it was similar to those in subsection (4) such as a right to an annuity or a capital sum out of a superannuation fund. In some circumstances, I can see a life interest under a settlement might be similar to that but in other circumstances it might not.

I am a little surprised, quite honestly, at the fact that the Minister is proposing to give any exemption in a case of this kind because in other matters in connection with capital taxation the Minister appeared to me to treat anybody who had an interest under a settlement as somebody who was almost automatically and by definition engaged in or with people who were trying to avoid if not evade tax. However, I suppose we should not look a gift horse in the mouth. I am a little surprised at what appears to me to be quite a different approach by the Minister from that which he has adopted in other provisions in regard to capital taxation relating to settlements.

Is the Deputy dealing with section 24, subsection (4)?

Yes. I thought the Minister said his amendment was being moved because the case of a person with an interest under a settlement was analogous to the kind of cases dealt with in subsection (4)?

That is right.

Amendment agreed to.

I move amendment No. 25:

In page 22, lines 17 and 18, to delete subsection (5).

This amendment has been discussed with amendment No. 13.

Amendment agreed to.
Question proposed: "That section 24, as amended, stand part of the Bill."

In plain language does this simply mean that the Minister is taking a certain advantage to promote State investment? It says that the following shall not be chargeable assets and these are all State securities. It seems to me that subsections (1), (2) and (3) are incentives to investment in public assets rather than anything else. Is that an unfair interpretation?

I would regard it as a very useful exhortation to people to invest in such assets which would be for the public good.

I am not raising any objection.

As exemptions are given in respect of gains then their right to set off losses similarly applies, so it is plus and minus.

How does it become plus and minus? They are not chargeable assets?

They are not but any losses cannot be availed of.

That is important in the case of land bonds.

It is very important from the State's point of view in the case of land bonds. If I was looking for the compelling reason I wonder would that be behind the exhortation?

Not at today's price.

I will not quarrel with the principle of encouraging State investment.

Debate adjourned.
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