I welcome theMinister of State at the Department of Finance, Deputy Mansergh, and his officials.
Finance Bill 2010: Committee Stage (Resumed).
Section 142 agreed to.
SECTION 143.
Question proposed: "That section 143 stand part of the Bill."
Is this a standard provision? Are there issues surrounding data protection, or what is the arrangement in place?
I will outline the background to this section for the Deputy. It inserts a new section 896B in the Taxes (Consolidation) Act 1997 which provides for the provision of information by the Commission for Taxi Regulation for the Revenue Commissioners. There has been concern in certain sectors about some taxi and hackney drivers operating in the shadow economy. This provision will allow the Revenue Commissioners to access information on those licensed by the taxi regulator. We have been advised by the Attorney General that there are no data protection issues arising.
Question put and agreed to.
SECTION 144.
Amendments Nos. 125 to 129, inclusive, are related and will be discussed together.
I move amendment No. 125:
In page 201, between lines 4 and 5, to insert the following:
"(7) Nothing in this section shall be construed as requiring any person to disclose to an authorised officer -
(a) information with respect to which a claim to legal professional privilege could be maintained in legal proceedings,
(b) information of a confidential medical nature, or
(c) professional advice of a confidential nature given to a client (other than advice given as part of a dishonest, fraudulent or criminal purpose).”.
This amendment proposes to insert a new subsection into section 907A of the Taxes Consolidation Act 1997, which is being inserted by section 144 of the Finance Bill 2010. Section 907A will allow the Revenue Commissioners to apply to the appeal commissioners for consent to issue a notice to obtain information from third parties with regard to a class of persons, on the same basis as the Revenue Commissioners currently have for financial institutions. This amendment provides that certain privileged and confidential information will not be subject to disclosure.
Amendments Nos. 126 to 129, inclusive, are technical amendments that will be required as a consequence of accepting amendment No. 125.
This seems a fairly wide power to obtain information from third parties. I note and recognise that the Minister's amendment tries to confine the power and narrow it down so as to weed out confidential information. Will the Minister of State outline the background to this amendment? Who are the third parties in respect of which this notice will be served? I take it this provision builds on the power the Minister had in financial institutions to identify people who hold accounts, which is understandable because such accounts offer a direct opportunity for tax evasion. What is the broader power the Minister is now taking? Is it circumscribed as to which bodies he will serve such notice on? What criteria do the appeal commissioners use in deciding whether such a request is justified?
This amendment ensures that where, as a result of an order under section 908, information is furnished to Revenue in respect of a third party acting for a person or group of persons whose identity is not necessarily known, Revenue may then make an application to the appeal commissioners for consent to issue a notice requiring that the third party provide details or make books available for inspection that are relevant to the tax liability of those persons.
Is it open ended? Does Revenue have to show grounds or that it is in hot pursuit of someone? What criteria do the appeal commissioners apply in deciding whether the case is justified? Can the Minister of State give us an example of the type of people the Government is after?
Grounds must be given to the appeal commissioners. If no grounds are given, the appeal commissioners will not allow it.
Amendment No. 125 refers specifically to information with respect to a claim to legal professional privilege in legal proceedings. It also refers to information of a confidential medical nature and professional advice of a confidential nature given to a client. Can the Minister of State confirm whether the Revenue Commissioners have had discussions with various professional bodies about responding to and dealing with Revenue? It certainly did with accountants and lawyers, but I am not quite sure about medical professionals. Can the Minister of State tell us what interaction there has been with the professions with regard to this amendment?
The Minister said something last night about which I ask the Minister of State to elaborate. He said the taxation element of NAMA was now, contrary to the original arrangements in the NAMA legislation, being transferred to the Revenue Commissioners. When one reads accounts of court cases involving distressed property developers, medical issues frequently arise. Many of them were under medical care when proceedings got under way. Will the Minister of State elaborate on this amendment, which is a later amendment to the section? I am glad the Revenue Commissioners will have powers to question legal advisers and so on. Will the Minister of State elaborate on the amendment and explain the story behind it?
In order to approach the appeal commissioners, there must first be a written permission from the Revenue Commissioners. They must give permission for an appeal and must be satisfied there are reasonable grounds to believe the taxpayer concerned may have failed or may fail to comply with the Acts and that such failure is likely to have led or to lead to serious prejudice to the proper assessment or collection of tax. The officer must also be satisfied that the information in the possession of the financial institution is likely to be relevant to the proper assessment or collection of tax with regard to the taxpayer. As far as exclusions are concerned, this is a standard provision already in all other similar provisions.
Why are medical practitioners specifically mentioned and why does the amendment specify "information of a confidential medical nature" and "professional advice of a confidential nature given to a client (other than advice given as part of a dishonest, fraudulent or criminal purpose)"? I understand the Minister is trying to cast the net very wide in this amendment. However, I would like more information about how this will work and the thinking behind it. People sometimes go in confidence to religious advisers. Is that included?
I seek clarification. What does the Department have in mind with this amendment? I understand "third party" means a person whose identity has been furnished to an authorised officer by a financial institution. What does the Department have in mind in terms of the use of this legislation? Can the Minister of State give us a practical example of how it might be used? Does it relate to ongoing investigations or to new forms of investigation that will be undertaken? What criteria will be used by the appeal commissioner before allowing the Department to pursue a third party in terms of disclosure of relevant information?
On the subject of medical information, without explicit exclusions it is likely that personal medical records could be disclosed. The Revenue Commissioners do not want that information. With regard to the changeover from NAMA legislation to taxation legislation, in section 145 of the Bill, the European Commission considered that the powers relating to NAMA with regard to getting information from Revenue on taxpayers was best not included in the NAMA Act. Therefore, it is being included in this Bill.
The general principle behind this amendment is perfectly clear. I do not want to go into hypothetical examples, but it covers situations where a third party represents the interests of a group of taxpayers. What we are trying to achieve is better enforcement of the tax codes and in general one should be in favour of that. If, for example, a bank has an account in the name of "John Murphy" in trust, but it has no other information, this provision allows the Revenue to go to John Murphy to find out who the beneficial owners of the account are.
Will the Minister of State give us examples of who, apart from doctors, might be the other sources of the professional advice of a confidential nature?
I am chairing the meeting. I have asked Deputy Bruton to ask a question, to be followed by Deputy Burton.
Under section 144, an application cannot be made unless "there are reasonable grounds for suspecting that the taxpayer, or as the case may be, all or any of the taxpayers, may have failed or may fail to comply with any provision of the Acts". Will the Minister be giving the Revenue Commissioners the power to undertake a general trawl of every professional of any description? Will he require auctioneers, veterinarians and accountants, for example, to produce books, to be investigated by the Revenue Commissioners in the hope that they will reveal tax abuses? Is it intended that this power will be used in pursuit of a specific case, when the Revenue Commissioners have established that an abuse is occurring and are forensically pursuing it? The public accepts that the Revenue Commissioners have an absolute right to pursue a case if they feel an abuse is going on. I am not sure the public feels that the Revenue Commissioners have the right to demand books from every accountant, solicitor and veterinarian in the country.
They would not have the resources.
The phraseology used in this section — "all or any of the taxpayers, may have failed or may fail to comply" — seems extraordinarily wide. That is the only issue I am raising. Is this section providing for a trawling exercise, the compliance cost of which is to be imposed on others, or is it providing for a forensic pursuit in cases in which there are reasonable grounds to believe an abuse has occurred?
Can the Minister of State give the committee an example? If the Revenue Commissioners are pursuing a person to pay his or her taxes, but he or she is not being co-operative, we accept that the commissioners should be able to analyse the explanations he or she has given in order to find the truth. That is done through the Appeal Commissioners in a particular way. I want to ask the Minister of State about an aspect of that process. This amendment seems to stretch certain powers very widely in relation to "information of a confidential medical nature" and "professional advice of a confidential nature". I can understand the provisions relating to business advisers, such as bankers, lawyers and accountants. I would like the Minister of State to give an example of how this provision will be used. We have all seen newspaper reports about various property developers who have various illnesses. When somebody is in difficulty with the Revenue Commissioners, it is understandable that he or she can be under tremendous stress. People who do not owe the Revenue Commissioners anything, because they are honest, often suffer from more stress, distress and health complaints than those who have tax issues. Can the Minister of State give us a practical example of how he envisages this provision will apply in practice? What would be the sequence of events? When we meet people who have difficulties, as we do from time to time, we advise them to go to the Revenue Commissioners to talk about such matters and get them sorted out. If people with whom they have discussions of a confidential nature — their doctors and reiki consultants, etc. — are now going to be involved, we need to be able to advise them of that. If we are to make the case for an active co-operation that sorts the matter out, it is important for us to be able to give such people a picture of what might happen if they fail to co-operate.
I am sure Deputies are aware that the Revenue Commissioners do not have the resources to engage in generalised trawls. This power is used in cases where the commissioners have some information but need more information. Essentially, this power only comes into play when banks cannot provide useful information. I gave an example in response to Deputy O'Donnell. If the bank has an account in trust in the name of "John Murphy" but has no other information, the Revenue Commissioners are allowed to go to "John Murphy" to find out who the beneficial owner of the account is. I have already stated that far from seeking information from medical practitioners, precisely the opposite is the case. The Revenue Commissioners will not be seeking medical information. They do not want to get into the business of obtaining medical records about the diagnosis and treatment of diseases, or determining the bona fides of such records. They may need to get information from medical practitioners about their personal tax affairs, but that is a different issue.
I do not understand the Minister of State. The proposed new section 907A states that "an authorised officer shall not make application under subsection (2) without the consent in writing of a Revenue Commissioner, and without being satisfied that there are reasonable grounds for suspecting that the taxpayer .... may have failed or may fail". If one does not ask such a person, how can one be satisfied that he or she "may fail"? It is all very well to give the Revenue Commissioners the power to seek information they were refused when they requested it. The term "may have failed" is fair enough, but I am not sure about the term "may fail". How can one tell that a person "may fail" to comply if one does not ask them? I suggest that the words "or may fail" should be deleted, as it is a matter of opinion. How can the Revenue Commissioners be satisfied that they should use this power on the basis that an authorised officer thinks the person in question "may fail" to give the information? One either fails to give it, or one does not. If one fails to give it, that is fair enough — the Revenue Commissioners can look for extra power. It is unreasonable to use this power on the basis of a belief that someone might fail to provide information. We owe it to people to protect their individual rights. This power can extend into many areas. The three words "or may fail" should be deleted from this section of the Bill.
With respect, I will not delete them. We need to understand the fundamental purpose of this section.
I do not need a lecture from the Minister of State.
We are asking the Minister——
I understand perfectly. We are here to debate.
I am sorry.
The Minister of State should not give us lectures. We do not need a lecture from him.
The Deputy has just been giving me a lecture on individual rights.
We are here to debate. We are making a case. The Minister of State is getting off to a very bad start in this section.
Deputy Barrett, with due respect——
I do not want lectures from the Minister of State.
The Deputy has made his case.
I am quite entitled to do so.
He should allow the Minister of State to give his answer.
I do not want a smart answer from the Minister of State.
The Deputy feels entitled to lecture me.
The Minister of State should answer the question properly. I am asking a simple question. How can one decide that somebody "may fail"? I want the Minister of State to answer that question.
Regardless of what the Revenue Commissioners think, or may think, it is ultimately up to the Appeal Commissioners to decide what information the Revenue Commissioners can access.
They can make an application.
This proposal, like most of the Finance Bill, is about limiting and curtailing tax evasion.
We are all in favour of that.
We rely on taxes to fund services. I do not think we should be doing a lot of special pleading about the alleged rights of wealthy people.
This is Committee Stage. We are debating the detail of the Government's proposals.
We will not take lectures from the Minister of State.
We are asking the Minister of State about the scope and approach of his officials.
The Chairman needs to curtail the Minister of State.
Order.
I have nothing further to add.
No, no. The Minister of State is not entitled to treat a committee like that.
He is here to explain why this power is being sought.
On a point of order, this is Committee Stage. The Minister of State is indulging in Second Stage rhetoric about principles.
Rubbish.
We should be going through the details of what the Government is providing for. He is unwilling to answer the questions.
I have answered the questions at record length.
If he is not able to do so, he should send in somebody who is.
He should send in somebody to answer the questions.
I have answered all questions at great length.
You have not.
No, you have not.
I am not going to repeat myself again.
Why should the Revenue Commissioners be entitled to look for information on the basis that somebody "may fail" to give it to them?
The Minister of State gave an example in which "John Murphy" holds money in trust. Under current legislation, surely the Revenue Commissioners have the power to write to such an individual to ask for information. Furthermore, the whole tax system has been changed in recent years to a self-assessment system. The Minister of State is now saying an authorised officer shall not make an application without being satisfied "that there are reasonable grounds for suspecting that the taxpayer, or as the case may be, all or any of the taxpayers, may have failed or may fail to comply with any provision of the Acts". The Minister is pre-empting what people are going to do. He has still not answered the question on whether the provision relates to a scheme currently under investigation.
The problem is that this is very broad, sweeping legislation. The Opposition must ask exactly how it operates. People have rights. We want a system in which all revenue due is collected. If we have a tax system based on self-assessment and we effectively override it by saying we will allow records to be requested before a return has been made, there is a contradiction. The Minister needs to take the questions on board one by one and argue the merits of his case. If those merits do not stand up to scrutiny, he must take on board the arguments being put forward by the Opposition. We do not want the Minister to create a small mêlée in respect of which nothing positive is being done.
The Deputy has asked a question and should not be giving the Minister of State a lecture on how he should answer.
Currently the Revenue Commissioners must make such applications to the High Court, which is a costly and inefficient use of High Court resources.
The Minister of State is saying, therefore, that he can obtain the information. Why is he allowing the powers to be such that he can effectively obtain information prior to a return being made? This should be borne in mind in respect of people who have made a false income return. The Minister of State needs to ensure the legislation is equitable and that these points are addressed.
One area in which this may apply and of which we have experience is the investigation into offshore accounts. I refer to circumstances where there may or may not be a case of tax evasion. Bona fide offshore accounts may be held by a fully compliant taxpayer. This is why the word "may" is used.
If one goes before an appeal commission seeking information on offshore accounts, will it have any legal basis in terms of financial advisers or legal personnel based in another jurisdiction?
We are beginning to see this was not as simple as it was believed to be when first presented. There was a power associated with going to the High Court and now the Minister of State is talking about bringing cases to the appeal commissioner. A couple of questions spring to mind in this regard. Where was the power to go to the High Court set out in legislation? Is the Minister of State now presenting identical legislation or has it been altered? If he is deciding that a case that could heretofore have been decided upon only by the High Court is now to be decided by an appeal commissioner, is it sufficient, bearing in mind data protection requirements, to have an appeal commissioner decide on cases pertaining to unreasonable trawling exercises without setting out criteria that would allow people feel natural justice has been respected? I am not a lawyer but it seems to me the Minister is enhancing significantly the powers of the Revenue Commissioners to carry out trawling exercises. This may or may not be good but the practice of pursuing revenue needs to be corralled into territory that is reasonable and fair.
What the Minister of State said to date has not demonstrated to me that the Government has thought out the test of reasonableness that is to be applied. This is the last occasion on which the Oireachtas will have an opportunity to address this. Henceforth, the test of reasonableness, which is not specified in the Act, will be determined by appeal commissioners whereas in the past one was expected to have significant legal representation and discussion before a senior court official would make a decision.
The Government is bringing about a fairly substantial change. Appealing to the need to prevent tax evasion is not enough and there is a need to demonstrate that the measure has been constructed with some thought, bearing in mind the right of the citizen and the right of the Revenue Commissioners to pursue unpaid taxes. I do not get the impression the measure is well thought out. According to what the Minister of State is saying, we are being asked to rubber stamp it in the interest of pursuing tax evaders. There ought to be more to it than that. It must be shown that steps have been taken to account for the reasonable protection of the citizen in addition to the reasonable protection of the Office of the Revenue Commissioners.
The previous position was set out in section 908 of the Taxes Consolidation Act. The appeal commissioners are independent and there are safeguards in the new section. Subsection (3) provides for the making of an application to the appeal commissioners. The authorised officer must obtain the written consent of a revenue commissioner and must have reasonable grounds to believe the taxpayer concerned may have failed to comply with the Act and that such failure is likely to have led or to lead to serious prejudice to the proper assessment or collection of tax. The officer must also be satisfied that the information in the possession of a financial institution is likely to be relevant to the proper assessment or collection of tax in regard to the taxpayer. In other words, one is not talking about fishing expeditions or generalised trawls in the hope of turning something up. In any case, the Revenue Commissioners simply would not have the resources to do so.
I welcome the giving of powers to the Revenue Commissioners that save them from having to go to the High Court. This is the position of the Labour Party and I have made it clear on previous occasions. However, as I implied in my original question, I am concerned by the very broad nature of these powers. Will the Minister of State confirm that the professional representative bodies of the accountants and lawyers have engaged with the Revenue Commissioners on these issues and that, in broad terms, they are willing to co-operate when within the framework of the legislative powers of the Revenue Commissioners?
With regard to confidential medical information and the other professional information and advice, have there been discussions with the Revenue Commissioners? Is there a code of practice or standard approach? There are two sets of circumstances to be considered, one of which involves the Revenue Commissioners belief that there may be significant losses of taxation and the other of which often involves people becoming embroiled in relatively small cases, perhaps by simply failing in the first instance to respond to the Revenue Commissioners properly. How is the Government approaching this? Has the Attorney General confirmed that these powers are appropriate? While I am not a lawyer, I believe the scope of the section is so wide as to be unreasonable. It almost applies to any part of a person's life or family life. Are the Revenue Commissioners having a punt on the section's provisions, particularly on sections 144(3)(b) and 144(3)(c)? Alternatively, do they have grounded beliefs that this power is appropriate to them and not excessive? Is this based on the actions of the UK revenue commissioners? There have been several court cases there about the tax authorities’ right to information.
Will the Minister of State give some background as to the reasonableness of this measure? I support the Revenue in acquiring these powers but constitutionally one cannot go too far. This is a question about balance and appropriateness. We want a reasonable answer from the Minister of State, not just rhetoric.
I have some sympathy for what the Minister and the Revenue Commissioners are trying to achieve. None of us wants suspect bank accounts that could be managed by drug dealers or whoever. I want the Revenue to have the powers to get at the beneficial owners of such accounts. For example, there was a raid against the smuggling of illegal cigarettes in my constituency the other day. Clearly, we need the Revenue to have the powers to go after those people and sort it out. The difficulty is, however, as Deputy Barrett pointed out, that these are sweeping powers. If someone were to take a High Court challenge to this section, the court may have no option but to strike it down because of its endless scope. In fairness, the Minister of State has not answered that concern to my satisfaction thus far.
I want the Minister of State to give us a simple explanation as to how a Revenue Commissioner could authorise this on the basis that someone may fail to give information. It effectively would be based on opinion. If a person refuses to give information, then rightly the Revenue Commissioner should use his or her powers to force the person to give the information. However, to ask a Revenue Commissioner to make a decision on the basis that someone may fail to give information is based purely on opinion. I find the term "may fail to give" objectionable. It gives sweeping powers to the Revenue Commissioners. I would prefer the term "may have failed". I am not in favour of people avoiding taxes but people have rights too. We are being asked to give sweeping powers to the Revenue Commissioners. It is also an unreasonable request to ask someone on which to make a decision.
The Deputy has made his case.
It is an important principle.
The Minister of State referred to section 908 of the principal Act. My understanding of this section is that the tax inspector must have reasonable grounds for suspecting tax evasion before it goes to the High Court. It is a protection for people. Under this proposal in section 147, this protection is not necessarily in place. There is a system already in place that is working. Will the Minister of State elaborate as to how the proposed new system would work?
In our opinion the existing system is not working. It is slow and cumbersome.
It is called justice and we have a Constitution.
Are those grounds for changing it?
Deputy O'Donnell asked the Minister of State a question and he answered it.
With due respect this is about discourse.
Deputy Burton was going to ask a question but Deputy O'Donnell interrupted her.
I am just waiting for the Minister of State to give me a simple and easy example of how such powers could be used.
I welcome the support of Deputies Burton and Morgan, at least in principle, even if they have queries about its exact application.
We are talking about justice and the Constitution.
Allow the Minister of State without interruption.
The appeal commissioners are statutorily independent, have similar powers to those proposed and adjudicate on a wide range of matters on the tax code. They do not behave or have a track record of behaving in an arbitrary manner.
On the question of the terms used "may" or "may fail", the Revenue may already know John Murphy is not tax compliant. Access to information on an account in the name of the said John Murphy could copper-fasten Revenue's ability to deal effectively with his non-compliance.
Applications are based on the written consent of a Revenue Commissioner. A strong case would have to be made before this consent was given. Consent is not given lightly. The appeal commissioners must then make their decision.
The safeguards in the section are the same as those in other similar powers and would be familiar to tax agents. These would also have been discussed with tax agents over the years with a view to clarifying the provision. The only concern of practitioners was that this amendment would exclude confidential-type information, of which the most obvious example is medical, from its ambit.
The Attorney General gave his approval to this section before its inclusion in the Bill. That would deal with his opinion about a challenge to the High Court or the Supreme Court. This is an Irish model and not based on any developments in the UK.
Chairman, in the sense of fair play, can I ask one small question? I have not contributed that much.
I have allowed plenty of fair play for one hour and we have been going around in circles. I will allow the Deputy one final question.
Thank you, Chairman. The existing system has certain safeguards. At the same time, we all want tax compliance. Just because the system is slow, is it sufficient to put a more informal system in place? It achieves the same results. Is it sufficient to put a more informal system in place just because a formal system is slower? It achieves the same results, but the Minister of State might agree that it would appear to be more legally grounded, offering greater protection for the taxpayer. Perhaps he might explain whether the taxpayer continues to have the same legal protection under what is being proposed here as he or she does under the existing system.
A taxpayer can always have representation and ultimately he or she has recourse to the courts.
He or she may not be told. As the Minister of State is probably well aware, the appeals commissioner is not obliged to inform the taxpayer that this is being initiated by an inspector or whoever, within the Revenue Commissioners.
Ultimately it is a question of appreciation. The appreciation of the Government is to the effect that the present system is——
That is very abstract——-
——unduly slow and cumbersome. The Deputy wishes to put the emphasis on the existing legal rights of the taxpayer, and we differ on that point.
On a point of information, previously the taxpayer knew of this. He or she was represented in the High Court. Will the taxpayer have any knowledge of this approach to the appeals commissioner?
There is no requirement.
No, the taxpayer does not know about that.
If the Deputy wishes, he can table an amendment on Report Stage.
The main reason I asked the question was——
The question now is——
Chairman, the questions are not being answered.
The Minister of State has answered the question.
He did not answer the question. This is a matter of fact, not opinion.
The Deputy asked whether the taxpayer would be advised——
No, that is not right.
Would the Deputy please let me speak?
Are you the Minister of State? I am directing the question to him. Are we not entitled to ask questions any more?
(Interruptions.)
Amendment put and declared carried.
I am not voting for this.
I am sorry, but the question was put.
I did not hear it.
The Deputy should blame his colleague for that.
The Chairman should put the question formally.
(Interruptions.)
I move amendment No. 126:
In page 201, line 5, to delete "(7)" and substitute "(8)".
Amendment put and declared carried.
I move amendment No. 127:
In page 201, line 15, to delete "(8)" and substitute "(9)".
Amendment put and declared carried.
I move amendment No. 128:
In page 201, line 26, to delete "(9)" and substitute "(10)".
Amendment put and declared carried.
I move amendment No. 129:
In page 201, line 31, to delete "(7)(b)” and substitute “(8)(b)”.
Amendment put and declared carried.
Question, "That section 144, as amended, stand part of the Bill", put and declared carried.
Section 145 agreed to.
NEW SECTIONS.
This is a new section. Amendment No. 130 is in the name of Deputy Burton. Amendments Nos. 131 and 132 are related. Amendments Nos. 130 to 132, inclusive, will be discussed together, by agreement.
I move amendment No. 130:
In page 202, before section 146, to insert the following new section:
146.—The following section is inserted in the National Asset Management Agency Act 2009 after section 1:
"1A.—(1) For the purposes of this Act, ‘the Oversight Committee' shall mean a committee of the Houses of the Oireachtas, or a sub-committee thereof so enjoined and appointed by a Resolution of the Houses, consisting of specified persons not being members of the Houses of the Oireachtas to report to the Houses of the Oireachtas every 30 days on the operation of this Act and the activities of NAMA.
(2) The Minister, NAMA, and any other body or person having functions under this Act shall be required to co-operate with the Oversight Committee in the performance of its functions.".".
The purpose of these amendments is to request the Minister to provide some type of oversight as regards the NAMA process. Uniquely in terms of bank rescues the Irish structure in NAMA basically continues the crony capitalism, to quote the report of the Government's expert, Dr. Peter Bacon, when he described how the Irish banking system had fallen into its current dire state. He meant, of course, the relationship that exists between the banks, the developers and Fianna Fáil. It was he, the Minister's expert, who used that description.
From time to time there have been countries whose banking systems have been in difficulty, as some are at the moment. Without exception, however, all of them have parliamentary oversight which involves the capacity of members to ask questions as regards what happened, who did what and when, what went wrong and how it might be prevented from happening again. That is basically the nub of the matter. We are being palmed off by the Government with a type of inquiry that essentially is being conducted on behalf of the European Central Bank and the IMF. The Houses of the Oireachtas are not being provided with any opportunity for serious questioning as regards what is happening in NAMA. This is an enormous defect.
In the draft business plan which the Minister conceded late in the debate, he had set a date in early December for the passing over of the first group of big developers to NAMA. That was replaced by a date in January. The January date was replaced by a date in February, and that has now been replaced by a date promised for some time in March.
The amendment proposes to have an oversight committee which would be appointed by the Houses of the Oireachtas, providing for the reporting to the Oireachtas on a 30-day basis as regards NAMA. This is very much modelled on the Warren committee in the United States, and the work of Professor Elizabeth Warren in relation to what has been happening in the banking system there. As with Ireland, very large sums of money are involved in bailing out the banks and their activities. In the United States, as it is here, this is deeply controversial politically, but at least in America the democratic system allows the Members of Congress to ask questions and get reasonable answers from a panel of experts.
The second amendment seeks to provide that every six months the Houses of the Oireachtas will get a report from NAMA setting out the details of assets and so on, acquired, that are valued at more than €100,000, including a corporate plan and budget. Again, that is an extremely modest request to Fianna Fáil in government, to provide a minimum of information in a democratic process.
The third amendment seeks to provide that any person dealing with NAMA and taking advantage of benefit from the agency should be tax resident within the State and will have complied with his or her tax liabilities. I raised the case last night of a well-reported episode in the newspapers, where a very prominent person, frequently mentioned in despatches as regards very significant property and land dealings in Ireland, announced very publicly that he has now taken up residence in Switzerland. I believe a series of other people have also done so. These amendments are designed to provide some sense of accountability to Irish taxpayers, their children and grandchildren who will pick up the Bill for what NAMA is going to cost.
The Deputy is wandering somewhat from the amendment.
No, I am not because the three amendments basically relate to the critical issue of information and compliance on a tax basis in the context of persons who are dealing with NAMA and as regards reporting to the Houses of the Oireachtas.
Because this Finance Bill is being discussed some time after the heat of the NAMA debate has died down, this is an important opportunity for Fianna Fáil to reflect on what has not happened in relation to NAMA. I will not say, "I told you so", but I did advise the Minister at length that there would be difficulties with NAMA, that the process would be far from easy and that it would be extremely expensive. Most of my forecasts have been accurate. Through the amendment I again offer at least an opportunity for taxpayers, their children and grandchildren to get some kind of reporting on the estimated €50 billion cost of NAMA in terms of bonds. The ECB has agreed that the bonds are off-balance sheet but bond markets will price them into our national debt and when those bonds are issued our national debt will go up immediately and significantly. Taxpayers will not know what exactly it is they are paying large amounts of money for. If Fianna Fáil has its way it will all be kept behind closed doors and in ten years' time we will get some kind of report.
On what grounds is Deputy Burton basing her assertion? She should stick to the facts. We are not talking about policy. I call Deputy Bruton.
I am delighted to stick to the facts, which must be pretty embarrassing to the ruling party.
Oversight of NAMA is a very important issue. During the debate the Minister indicated that he would envisage Oireachtas oversight but he consistently refused to agree to any amendment that would introduce formal Oireachtas oversight. That is unfinished business following the debate on the NAMA legislation. I do not have to repeat the enormous anxiety felt by the public at the prospect of NAMA. We are mortgaging our children's future because of the sheer scale of the purchases involved, the increasing evidence that the security on which the loans were based is flimsy, the commitment by Government to pay €7 billion over the market price, and the publication of a business plan that no independent commentator felt stood up to scrutiny. We are now on our way to significant recapitalisation of the banks. We do not yet know what conditionality will surround that.
One positive feature of the NAMA debate is that the Minister did concede that he would take powers to require credit flows to follow from the NAMA process. We have not as yet seen how he will exercise those powers. There is a continuing need for oversight of this operation. The Minister showed some understanding of the need for that to be done but an unwillingness to show how it would happen. The NAMA process is moving rapidly. We could find that by the end of this month a lot will have moved on in terms of NAMA. Bills will be presented to the taxpayer to fund recapitalisation of the banks involved.
Since the debate on the NAMA legislation no forensic oversight has been possible on where banking policy is heading. Whether we like it or not that is a gap. The Minister will be asking taxpayers to sign cheques for up to €15 billion, according to some speculation, as well as NAMA writing cheques for up to €54 billion. Commitments are being made to substantial sums of money on behalf of the taxpayer. The Oireachtas, which represents the taxpayer, is effectively like a mushroom, sitting in the dark and knee deep in manure as far as information about what is going on is concerned. The Government needs to respond by establishing a way in which there will be informed Oireachtas oversight of how public money is being used.
There is huge public disquiet about NAMA. We require parliamentary oversight by people other than those who got us into the mess in the first place. The level of public disquiet is profoundly evident. I met someone yesterday evening who said that at one time when she met her friends they used to discuss weddings, holidays or birthdays but they are now talking about NAMA and the economy. That is the topic of conversation at the moment.
They are talking about Deputy O'Dea as well.
There is a level of public concern. I support the two Labour Party amendments proposed by Deputy Burton. I hope the Government will accept them because, unfortunately, when the poor old Greens buckled yet again in their requirement for parliamentary oversight we all lost out. The sum of €54 billion is not nearly enough to handle the scale of what will be required when one includes recapitalisation. I hope the Government will give serious consideration to accepting the amendments.
As Deputy Morgan is aware, oversight is very important.
The Chairman is going off script.
He reminds me of an old school teacher.
We should refer to the terms of reference on what exactly a Chairman should do.
I agreed with Deputy Morgan.
We might introduce an oversight committee. To return to the serious matter at hand, Deputy Morgan is correct, NAMA has become a topic of conversation. All those issues are interlinked. When NAMA was being launched the Minister, along with every single Minister and Fianna Fáil backbencher, said NAMA would improve the flow of credit, that it was the panacea for all our ills. It is only a device to help us to get money back into the economy. The former CEO of AIB came before a committee and said, in effect, that AIB would possibly not use the NAMA bonds to get cheaper funds from the ECB. NAMA has failed on the grounds of improving the flow of credit.
The NAMA legislation was introduced by the Houses of the Oireachtas. We are here to represent the people. There is a critical need for proper oversight. Mr. Regling and Mr. Watson will attend a committee meeting later this afternoon to discuss the banking inquiry yet we have no firm indication from the Minister as to what exact type of Oireachtas oversight will be put in place for NAMA. We are told that €16 billion worth of loans involving ten projects will be transferred to NAMA in the coming weeks. People are losing their jobs and depending on social welfare. People are being caught by further stealth taxes introduced in the budget and they want to know what is going on. We have no idea of what exactly is happening with NAMA.
I do not believe NAMA will work. It is an albatross around taxpayers' necks. It is a device which the Government has designed that it will dump into a quarry for two or three years. In effect, nothing will happen but it will be out of sight and out of mind. Ultimately, the taxpayer will end up paying. What we need is a firm commitment from the Minister on what form of Oireachtas oversight will be introduced and that it would be put in place as a matter of urgency.
My concern is that the Minister will come up with a mechanism when all of the loans are transferred. My firm belief is that before loans are transferred the valuations should be discussed by an Oireachtas committee which would provide some oversight where currently there is none. The public perception is that there is no Oireachtas involvement.
As a member of the Oireachtas Joint Committee on Finance and the Public Service I attended meetings on NAMA that sat late into the night. It is crucial that there is some kind of oversight considering the sheer scale of the moneys that are involved. The public need to know there is confidence, that there is no cover-up and that there is accountability and transparency. The Minister of State must accept this amendment on behalf of the people and get on with it.
Does Deputy Barrett wish to comment?
I will listen to the Minister of State's response, although it would save us half an hour if he said "Yes".
As I understand it, I am taking three amendments. First, I wish to set out the purpose of section 145 of the Bill. This section amends subsection (2) of section 204 of the National Asset Management Agency Act 2009 by replacing it with a new subsection. The purpose of the new subsection is to require NAMA——
On a point of order, while I do not wish to disturb the Minister of State, my understanding is that he is required to respond to my amendments.
I would like, as a background to responding——
He is responding to the section, on which we already had——
I am coming to the Deputy's amendment. I think it important, given——
The Minister, Deputy Brian Lenihan, told us that yesterday.
The amendments are trying——
The Minister of State has the floor.
The Chairman should stop protecting him. He is meant to look after our interests as well.
He spoke for ten seconds before the Deputy stopped him.
I want him to answer on my amendments. He is required to deal with the amendments.
I feel I am entitled by way of background to the reply on the amendments to stress what is the purpose of this section. After all, they are amendments to the section.
Why does the Minister of State not answer on the amendments?
Are they amendments to the section or are they not?
They are.
In which case, let us first of all see what is the purpose of the section and then how the amendments come into it.
Allow the Minister of State to proceed to outline the purpose of the section.
We know that. We have been working on the Bill for a month.
I call the Minister of State.
The problem is that the amendments effectively introduce extraneous matter into the Bill which——
That is the Minister of State's view but it is not correct.
Is the Deputy not asking me for my view?
I want him to answer on the amendments.
Deputy Burton may question the Minister of State when he is finished speaking.
Am I not entitled to state my point of view?
You are.
Is that not what I am being asked to do? I will resume.
Section 145 amends subsection (2) of section 204 of the National Asset Management Agency Act 2009 by replacing it with a new subsection. The purpose of the new subsection is to require NAMA to provide the Revenue Commissioners with certain information in regard to property transactions in order to ensure that such transactions have been correctly dealt with by the parties concerned for tax purposes.
Revenue's experience, from dealing with a series of tax-related investigations over the years, such as the Ansbacher offshore assets investigation and so on, is that offshore vehicles featured as a key element of the tax evasion process. Given the experience with earlier investigations and in the context of the property-induced crisis with which NAMA is now involved, Revenue is concerned about the possibility vehicles may be a feature of some——
On a point of order, the Minister of State is on the wrong section.
No, I am not. Given the experience with earlier investigations and in the context of the property-induced crisis with which NAMA is now involved, Revenue is concerned about the possibility vehicles may be a feature of some property-based transactions.
The Minister of State is dealing with section 145.
For example, some of the original owners of the landed property acquired by developers who may not be fully known to Revenue.
We are discussing section 146.
He is talking about the wrong section.
Excuse me, Minister of State. We are on section 146. It is a new section.
I am sorry, I was dealing with the NAMA-related aspect of it.
On a point of order, could I have an apology from the Minister of State? While I do not wish to have an argument with him, I put my amendments. I told him that this had been discussed and that we had already been informed by the Minister. If he would just answer my amendments, we could move on.
I will do that. I refer to amendment No. 130. The Deputy submitted an almost identical amendment, as she has stated, on both Committee Stage and Report Stage of the National Asset Management Agency Bill 2009. On both occasions, the amendment was rejected. Nevertheless, the Minister made it clear during that debate that he is in favour of effective Oireachtas oversight of NAMA and there are substantial provisions already in the NAMA Act dealing with the oversight of NAMA by the Oireachtas.
It is even more serious now.
Arising from the debate on Committee Stage of the NAMA Bill, the Minister brought forward an amendment to increase the requirement for NAMA to report on a quarterly basis where, previously, bi-annual reports would have been required. This was passed by the Oireachtas and the Act provides for NAMA to submit to the Minister quarterly reports which he shall lay before each House of the Oireachtas, as well as sending a copy to a committee appointed by the Oireachtas to deal with NAMA. The Act provides that the quarterly report shall include a range of specified information and any further information that the Minister for Finance directs.
The Act also provides for NAMA to report on a range of matters, including details relating to loans. These reporting arrangements allow for transparent reporting that does not breach the agency's obligation to respect the confidentiality of customers.
In view of the extensive provisions already in place, I do not accept the proposed new section. Amendment No. 132 was also submitted on Committee Stage and Report Stage of the NAMA Bill. At that time, the Minister rejected the proposed amendment because it raised issues in regard to Article 12 of the European Community Treaty and the articles of that treaty relating to the free movement of persons, services and capital. The inclusion of a tax residency requirement might well amount to unlawful discrimination against persons or undertakings from other member states. Furthermore, the reference to benefit or advantage made by the Deputy in the proposed amendments is imprecise. NAMA, as a commercial entity, will enter contractual arrangements which are of mutual benefit to NAMA and whoever enters into a contract with it.
I can assure the Deputy that Revenue will be vigilant in regard to tax issues arising from the transfer of bank assets to NAMA, which was what I was reading out in regard to the previous section. The provision of information by NAMA to the Revenue Commissioners is specifically provided for in section 204. Indeed, during the course of the Finance Bill, I will bring forward an amendment to section 204 of the NAMA Act. This seeks to further enhance the powers of Revenue in the combatting of tax evasion.
Will the Minister of State kindly reply to amendment No. 131 on the six-monthly report in regard to assets acquired by NAMA during the period and valued at over €100,000, and including a corporate operational plan and budget? The Minister of State has not referred to that amendment.
These amendments are extremely timely. They were put forward at the time of the NAMA debate when the Minister promised us that the process would be well underway and the first tranche of the top ten developers would be transferred by 19 December. What date is it today? Would be Minister of State be able to tell us that?
It is 25 February.
Exactly. Well done.
We have a winner.
I knew we could get a positive dialogue going here. It seems a long time has elapsed since the deadline of 19 December came and went. We do not even know now whether it will be 19 March or 19 April — we could run a lotto and all pick our 19th of the month on which it might arise. However, there is no sign of it coming over the horizon.
In the meantime, what we hear from selected leaks by the Government to the newspapers is that the NAMA process is proceeding, that unfortunately, loans are worth far less than the Minister intimated at the time and that the loans lack paperwork. The Minister himself confessed that there is a terrible mess in regard to the resting on contract and the stamp duty avoidance that the Taoiseach, Deputy Brian Cowen, as Minister for Finance positively endorsed, encouraged and enabled by not closing off that loophole long after it was pointed out to him and long after he had brought in legislation to pass it off. All of that has happened since we had the NAMA debate. The need for oversight and information for taxpayers, whose children, grandchildren and great-grandchildren will have to pay for this, is more acute than ever. It is very high-handed and arrogant of the Minister of State to suggest that taxpayers are not entitled to information.
The Minister of State stated in his reply that the Minister, Deputy Brian Lenihan, had given an assurance that an Oireachtas oversight committee would be appointed. As I recall, this was mentioned on Committee Stage and reinforced on Report Stage. The Minister of State did not elaborate on how the Minister sees that proceeding and how the necessary mechanism can be put in place. Following on from Deputy Burton's question, where stands the transfer of the loans into NAMA and when exactly is it expected to happen?
With respect, that has nothing to do with the amendments we are discussing.
Deputy McGrath should read the amendments.
These questions have nothing to do with the amendments. We are having another Second Stage debate on NAMA.
Will Deputy McGrath read the amendments?
I have read the amendments and I hope to speak about them.
The Deputy has not spent much time at the meeting.
I was following the proceedings on screen, listening to Deputy Burton's rubbish.
That is very reassuring.
I thank Deputy McGrath for his intervention but I am well capable of reading the amendments myself. I have one question for the Minister of State.
The Deputy is not speaking to the amendments; he is making a Second Stage speech.
I am speaking to the amendments.
Deputy McGrath is full of bluster.
Deputy O'Donnell should be allowed to put his question to the Minister of State.
Our understanding was that all the development loans, both good and bad, would be transferred into NAMA. Will the Minister of State elaborate on whether that is the case? With each day that passes the credibility of the NAMA process is eroded.
To which amendment does the Deputy's question refer?
My question is to do with oversight.
The Deputy is stretching the definition of oversight somewhat.
These are the types of questions an oversight committee would ask.
On the issue of publicly identifying people whose loans have been transferred from the financial institutions to NAMA, many of those loans are performing loans on which repayments are being made in full. The effect of amendment No. 131 would be to publish the details of those people's banking transactions. I do not see any merit in that. Where is the public interest in publishing details of persons whose financial arrangements with institutions are being fully honoured? That would entirely undermine the integrity of the banking system which has already been damaged enough.
May I respond to the point made by Deputy McGrath? The fact is that the issue of the performing loans in NAMA is a highly delicate question, as I am sure the Deputy knows——
The Minister of State must be allowed to respond to the questions that have been put to him, after which Deputy Burton may ask a supplementary question.
Taxpayers are entitled to know what is happening with their €56 billion investment.
I was accused of rhetoric in the course of the debate on an earlier amendment. Given the talk about children, grandchildren and so on, it seems rhetoric is allowed to members of the committee but not to me. The overall process of NAMA is complex but the transfer of properties will commence shortly. Several items of information will flow from NAMA in the coming months. The code of practice will issue in a month or so, a quarterly report on 30 June, and an annual statement for 2010 will be published. Under sections 57 to 59, inclusive, of the NAMA legislation, there is provision for an audit by the Comptroller and Auditor General which will be submitted for the consideration of the Committee of Public Accounts. Section 59 provides for a committee to be established by the Oireachtas.
As far as more general questions are concerned, I do not consider them to be germane to the Finance Bill.
I find the Minister of State's reply very depressing. It is one example of why, while other countries——
The Deputy is moving away from the subject matter of the amendment.
I am replying to the Minister of State's response. He appears to feel that a reporting situation——
I am not interested in what the Minister of State feels.
I am allowed, on Committee Stage, a short reply to the Minister's response.
Is the Deputy talking about the amendments?
Yes.
Does her question relate to the subject matter of the amendments? It is not about what the Minister of State or anybody else feels.
Yes. The Chairman should listen to what he is told. We are in a situation where what we were promised has not been done. The Minister of State made several references in his response to progress being made in "a month or so" in regard to the flow of information that would give some capacity for oversight. He mentioned June for the receipt of a first quarterly report. What is so depressing about the Minister of State's reply is that, first, he seems to know little or nothing about NAMA, even though he is Minister of State at the Department of Finance——
The Deputy is moving away from the subject matter of her amendments.
I am not. The Minister of State cannot give us the slightest indication——
The Deputy is launching personal attacks against the Minister of State and I will not accept that. The Deputy will have an opportunity to table an amendment on Report Stage if she so wishes.
The Minister of State is second in command at the Department of Finance but he has no idea when any information will be made available.
I have called Deputy Barrett.
This is not just a failure of government, it is a collapse of government.
May I reply to Deputy Burton?
The Minister of State does not know and cannot tell the committee when the information will be available.
May I reply?
He merely made vague reference to "a month or so".
I will be obliged to suspend the meeting if order is not restored.
I just gave the Deputy dates when things will happen.
You did not.
Yes, I did.
I am suspending the meeting.
The Minister of State referred to "a month or so" and "shortly". He does not know the answer.
The Minister, Deputy Brian Lenihan, could not give the Deputy any further information than what I have given.
The Government is collapsing.
The meeting is suspended.
Sitting suspended at noon and resumed at 12.10 p.m.
Amendment put.
In accordance with the Order of the Dáil of 18 February 2010, the division is postponed until 1 p.m. or until the completion of proceedings in the matters being dealt with in this session.
I move amendment No. 131:
In page 202, before section 146, to insert the following new section:
146.—The following section is inserted in the National Asset Management Agency Act 2009 after section 2:
"2A.—Every 6 months NAMA shall report to the Houses of the Oireachtas setting out details of its operation including the identities of the owners of, and particulars (including value) of, any assets acquired by it during the period in question valued at over €100,000 and including a Corporate Operational Plan and Budget.".".
Amendment put and declared lost.
I move amendment No. 132:
In page 202, before section 146, to insert the following new section:
146.—The following section is inserted in the National Asset Management Agency Act 2009 after section 2:
"2A.—Notwithstanding any provision of this Act, no person may participate in acquiring any benefit or advantage under this Act unless such person is tax resident within the State and has complied with his or her tax liabilities to the State.".".
Amendment put and declared lost.
As the question of section 146 is contingent on the result of the postponed division on amendment No. 130, in accordance with the order of the Dáil on 18 February 2010, the putting of the question will be postponed until 1 p.m. or until the completion of proceedings on matters dealt with in this session.
SECTION 147.
Amendments Nos. 133, 134, 136 and 137 are related and will be discussed together.
I move amendment No. 133:
In page 202, paragraph (a), line 19, to delete “Tax Acts” and substitute “the Acts”.
The purpose of these amendments is to correct and intercorrect a definition of the Bill as published from "Tax Acts" to "The Acts".
Amendment agreed to.
I move amendment No. 134:
In page 202, line 20, to delete "Tax Acts" and substitute "the Acts".
Amendment agreed to.
Amendments Nos. 135 and 138 are related and will be discussed together.
I move amendment No. 135:
In page 202, between lines 26 and 27, to insert the following:
"(f) any other enactment which imposes a charge payable to public funds,”.
Why is there not a wider wording in respect of charges on public funds? The wording is quite narrow. There are other charges to public funds that people may be obliged to pay. Why are they not included?
Section 147 amends definitions in sections 194 and 195 of the Taxes Consolidation Act 1997, which deal with the issue of tax clearance certificates. Tax clearance certificates are an important element in establishing the tax compliance of persons in respect of public service contracts. At present, only taxes payable under the Income Tax Acts, Corporation Tax Acts, Capital Gains Tax Acts and the VAT Acts are taken into account in determining whether a tax clearance certificate can be issued. As a result of this change, liabilities and returns relating to customs and excise duties will also be taken into consideration. The Collector General issues tax clearance certificates where he is satisfied a taxpayer is in compliance with the obligations imposed on the taxpayer relating to the delivery of returns and payment of taxes. He can only do so in respect of taxes within his control. This amendment proposes to place an obligation on the Collector General to make determinations in respect of provisions for which he has no knowledge or control. Examples of this include direct PRSI payments to the Department of Social and Family Affairs, rates payable to local authorities, motor vehicle taxes and refuse charges. In the circumstances I cannot accept the amendment.
Am I to believe that to date, when tax clearance certificates were being applied for, issues such as excise duties were not taken into account?
Amendment, by leave, withdrawn.
I move amendment No. 136:
In page 202, paragraph (b), line 30, to delete “Tax Acts” and substitute “the Acts”.
Amendment agreed to.
I move amendment No. 137:
In page 202, line 31, to delete "Tax Acts" and substitute "the Acts".
Amendment agreed to.
Amendment No. 138 not moved.
Question proposed: "That section 147, as amended, stand part of the Bill."
Does this section concern taxis?
No, tax clearance certificates.
Question put and agreed to.
Question proposed: "That section 148 stand part of the Bill."
Regarding the joint Council of Europe OECD convention on mutual administrative assistance on tax matters, the convention provides for mutual assistance between parties to the convention in respect of the exchange of information, the recovery of taxes and the service of documents. What type of information does this refer to?
One example is checking the residence status of a person. The prevention and detection of tax evasion is a major and growing concern for countries, particularly those operating in the global economy where people and capital can move relatively freely. I have attended OECD and EU meetings dealing with this specific topic in the past 12 months or so. A number of measures are available to enable countries to assist each other mutually in the prevention and detection of tax evasion. One of these measures involves countries exchanging taxpayer information. An exchange of taxpayer information is provided for as a matter of course in Ireland's double taxation agreements and tax information exchange agreements. Another measure is for countries to assist each other in the recovery of each other's tax.
This section amends section 826 of the Taxes Consolidation Act 1997 to enable the inclusion of provisions regarding mutual assistance in the recovery of tax and double taxation agreement and the ratification of the joint Council of Europe OECD convention on mutual administration assistance in tax matters. Ireland uses an adapted version of the OECD model tax convention on income and capital when negotiating double taxation agreements. The OECD model was amended in 2003 to include a provision enabling mutual assistance in the recovery of tax. Although Ireland has been requested in a small number of double taxation agreement negotiations to include this provision, it has not been possible to do so due in part to the absence of power in section 826 to incorporate such provision, but the amendment to section 826(1) provides the necessary power.
The inclusion of a new section 826(1)(c) is to enable the State to ratify the joint Council of Europe OECD convention on mutual administrative assistance in tax matters. The convention provides for mutual assistance between parties to the convention on the exchange of information, recovery of taxes and service of documents. The committee is aware that it has done the heavy lifting on ratification of double taxation agreements and tax information exchange agreements of which quite a large number have come forward.
To answer in more detail the question on the type of information being exchanged, it is on all issues relating to the tax affairs of a person, whether and where the person is resident, whether the person is known to another country and, where a person owns property in another country, bank account information. Ratification of the joint OECD Council of Europe convention will assist in the prevention and detection of evasion relating to Irish taxes. It will enable Revenue to request information on persons located in the territories of other parties to the convention. This will assist them in determining whether those persons have a liability to Irish tax. It will enable Revenue to request other parties to the convention to collect Irish tax and to serve documents on its behalf. The convention offers more flexibility than a bilateral agreement such as a double taxation agreement as it is a multilateral instrument. Once a country has ratified the convention and it comes into force, the convention applies to that country and all the other countries that have ratified it. It is in force at present.
Does this section apply only to countries with which we have double taxation agreements?
Have exercises on the possible loss of revenue to the Exchequer through not being able to properly implement double taxation agreements been carried out by the Department or the Revenue Commissioners?
If the Deputy is asking how beneficial is the exchange of tax information, in 2008 the Revenue Commissioners initiated 129 requests and collected €890,000 and in 2009 they initiated 82 requests and collected €975,000.
Is the individual taxpayer entitled to know what information the Revenue Commissioners have about him or her?
It is an issue of whether the tax information is on the Revenue systems. If it is on the systems it is passed and if it is not the taxpayer is asked. Therefore, in the latter case the taxpayer would know of the information request.
It must be made certain that information being passed to somebody else is correct. One must account for human error. Therefore if somebody is to pass information about somebody to a third party it must be certain that the information being passed is correct.
Of course, that is——
We have all this business of data protection but——
Tax returns come from the taxpayer and they are what are most usually requested.
There is information that could be gained which may be incorrect or semi-correct. It might not necessarily be the tax returns that one makes. Other information can be passed about which the taxpayer may not know and which may in some cases be incorrect. That is the trouble with these agreements; people pass information about individuals but it may not be 100% correct. I do not disagree with the principle and it is important. However, given all of the agreements into which we enter it is becoming more important to have properly kept accurate records so that an individual in a democracy can be assured that any information about him or her is correct if it will be passed to a third party. I do not object to passing information.
I will put the question.
This is Committee Stage——
Deputy Barrett did not ask the Minister of State a question.
I did.
The Deputy did ask a question and I am willing to answer it.
It was the same question over and over again.
I asked whether we are sure the information being passed is up to date and correct. It is a simple question.
Normally, a taxpayer is aware of what information the tax authorities possess on him or her. The most commonly asked for information is information which a taxpayer provides to Revenue. It is always possible for a taxpayer to provide inaccurate information to Revenue.
I wish to ask a quick question.
We have moved beyond it.
Question put and agreed to.
SECTION 149.
Amendments Nos. 139 to 141, inclusive, are related and will be discussed together.
I move amendment No. 139:
In page 204, line 8, after "and" to insert "on".
Amendments Nos. 139 to 141, inclusive, are drafting amendments which correct typographical errors in section 149 and ensure that the titles of the orders relating to Belarus, Gibraltar and Liechtenstein will appear correctly in Schedule 24A of the Taxes Consolidation Act 1997 when the Finance Bill 2010 is enacted.
Amendment agreed to.
I move amendment No. 140:
In page 205, line 2, to delete "Tax Matters" and substitute "Taxes".
Amendment agreed to.
I move amendment No. 141:
In page 205, line 16, to delete "Tax Matters (Principality of Liechtenstein)" and substitute "Taxes (Liechtenstein)".
Amendment agreed to.
Section 149, as amended, agreed to.
Sections 150 and 151 agreed to.
SECTION 152.
Amendment No. 142 is deemed out of order as it would involve a potential charge on the people.
Amendment No. 142 not moved.
Question proposed: "That section 152 stand part of the Bill."
Do the Revenue Commissioners have a list of judges who agreed to have their pay reduced in line with the deductions suffered by other public servants? The Government has been distinctly lacking in courage in not putting in place a framework to offer a legal mechanism for judges to comply. If there are judges who wish to object to having the same deductions as other members of the public service then who are better placed than they to take a legal case? How many judges are voluntarily complying with the deductions suffered by public servants? What deductions are being suffered by those judges who agreed to have their pay voluntarily deducted and gifted to the State?
There has been considerable discussion on this matter. It is a source of public disquiet that some of the most privileged people in our community are not obliged to take a cut. I acknowledge that it originates in a provision of the Constitution which prohibits the Government from cutting the pay of judges but that provision was not designed by its authors to prevent general measures such as this from being applied. The intention was to prevent Governments from interfering in the work of judges. The issue needs be brought to a head and if the Government is not willing to implement it and allow a challenge by the judges, the necessary steps should be taken to change the law and the Constitution. Other amendments will be put to the people in the near future and we should deal with the issue because it is a source of scandal that some people are left alone when everybody else is making a sacrifice.
I ask the Minister of State whether he feels entitled to publish the names of those who comply. These people are serving in public office and their pay and conditions are matters of public record. If they have voluntarily given up their pay, I do not see why this should not be a matter of public record.
I support the sentiments expressed by the previous speakers. As Deputy Bruton noted, judges enjoy a very privileged life and it is only fair that legislation is put in place to hold them to the same standard as other public servants in terms of pay cuts. If they do not like it, they know the process to follow better than anybody.
This matter was debated at some length before Christmas in the context of other legislation. It was agreed that a constitutional amendment would be required if the deduction is to become an obligation. Deputy Shatter certainly made that argument on behalf of Fine Gael.
We had our own legal advice which did not agree.
The Government took the same view. The amendment proposes that the provisions of section 152, which relate to the provision of a voluntary scheme enabling members of the Judiciary and military judges to make a gift to the State of an amount equivalent to the pension related deduction imposed on State employees, will become a compulsory scheme within one month of the passing of the Finance Bill 2010 and annually thereafter. Changing the voluntary nature of the scheme into a mandatory one would in effect be tantamount to imposing a pay cut on the members of the Judiciary. Our view is that course of action runs counter to Article 35.5 of the Constitution, which provides for a prohibition on reducing the remuneration of a member of the Judiciary and was drawn up with the intent of minimising political influence on that body.
Deputies will be aware that report No. 44 of the Review Body on Higher Remuneration in the Public Sector concluded that the Constitution precluded it from recommending a reduction in judicial pay. However, it noted that it would have considered a downward adjustment if such a prohibition did not exist. It was for these reasons that the voluntary scheme covered by section 151 was introduced in this Bill. Although the scheme is general in character, it is based on the arrangements agreed between the Revenue and the Chief Justice on the pension related deduction. The section formalises these arrangements.
A total of 109 judges have made voluntary payments to Revenue, paying a total of €652,000.
Out of how many judges?
This figure represents 78% of 141 judges.
Can the Minister of State indicate whether all the Supreme Court judges are paying the voluntary donation?
I do not have that information.
The Revenue Commissioners must have the information. Is the Minister of State trying to hide it? If the Revenue Commissioners are conducting the scheme, they have to have the name, address and court office of each judge. Are all the Supreme Court judges paying the deduction?
The tax code is covered by confidentiality but if the Deputy wishes to put a question to the Minister for Finance, she should do so.
Is a gift not open to being reported? We are entitled to public reporting on this because it is a matter of major public interest. I cannot see why they should be protected because these gifts are being voluntarily given to the State.
This is a transaction between individuals, albeit high officeholders, and the Revenue Commissioners. Communications between individuals and the Revenue Commissioners are confidential in matters of taxation, and this is a matter of quasi-taxation.
I want to ask the Minister of State——
Does Deputy O'Donnell wish to make a final comments?
I resent even being asked that question.
I ask from experience. Has the Deputy a question?
I have but I resent you. Will the Minister of State elaborate on whether the €652,000 in deductions were ad hoc or pro rata reductions?
They were voluntary payments not reductions.
Were they consistent or did each judge decide to make a different payment?
Did some judges send a tenner while others took the same cut as public servants?
Were they consistent?
They were gifts or donations and the payments were in a range.
That means they were inconsistent.
That is the Deputy's interpretation.
They are certainly nowhere near the same percentage levied on ordinary public servants.
Their contributions varied. The Minister of State is confirming that they were not consistent. It should be in the public domain.
May I confirm the figures provided by the Minister of State? He suggested that 109 judges out of a total of 141 are paying €650,000. That figure does not add up given what we know about the pay of Supreme Court and High Court judges. In the interest of information and accountability, the clerks of the court, the gardaí and other public servants are taking deductions proportionate to their salaries.
The Minister of State did not decide how much they should be paid.
Those figures appear to be wide of the mark in terms of what judges might take by way of deductions were they to make the same kind of salary sacrifice as public servants. That is a legitimate inquiry and other public servants would like to know the answer.
The period in question runs up to the present and subsequent to the re-enactment of this Bill, which formalises the arrangement. It was until now a voluntary donation and there has been no legal requirement to make a payment at the same percentage as a public servant. It is up to individual judges to decide whether to make one of these voluntary gifts. As this legislation has not yet been enacted, each judge is able to decide what to give. However, this section of the Bill will require them to make future payments by reference to the pension deduction.
Have the judges been designing their bills or contributions themselves? Did some judges decide to give a tenner while others made a contribution in accordance with their understanding of the suffering imposed on public servants of their rank or salary level?
The Deputy has put it in her words. I am not contradicting her. She should not ask me to say anything further.
That is very helpful. It is interesting.
By way of clarification, the average payment per judge is less than €6,000. The facts speak for themselves. Clarity is needed in the public interest. Perhaps the Minister of State can provide details of the level and range of judges' contributions, or voluntary deductions.
I do not want to be unhelpful, but I suggest that the Deputy should table a detailed parliamentary question on the subject.
Would information in that regard be forthcoming?
I cannot answer that. Until the Minister sees the question, it is difficult to hypothesise about what the reply might be.
Is the Minister of State confident that we will get the information?
I am sure the Deputy will get a reply.
What kind of reply?
Is the gift or donation that is made allowable against tax?
In other words, it is not regarded as a reduction in income.
Question put and agreed to.
Section 153 agreed to.
NEW SECTION.
I move amendment No. 142a:
In page 208, before section 154, to insert the following new section:
154.—The Principal Act is amended—
(a) in section 238(2) by the insertion after “yearly interest of money” of “and apart from any period payments made to a plaintiff by means of compensation or damages for any wrong or injury referred suffered by an individual in his or her person or in his or her profession”, and
(b) in section 613(1)(c) after ”profession“ insert ”, whether by once-off lump sum or by way of periodical payment”.”.
The purpose of this amendment is to provide for a change in the law that I do not believe would be particularly controversial. I am indebted to Senator O'Toole, who raised this issue with me, for advising me on the wording of this amendment. Under Irish law, when people receive a lump sum, for example as a consequence of horrific injuries arising from accidents or difficulties at birth which have been adjudicated on in the courts, the lump sum payment is free of tax. That provision was included in a taxation Act some years ago. Mr. Justice Quirke, other judges and various organisations have suggested that when people get a court award to help them to deal with horrific injuries and lifelong damage, etc., it might be better in some cases if the lump sum was to be paid on a phased basis over a period of time. The problem is that income tax falls to be paid on payments which are made on a phased instalment basis. That would obviously make the system inoperable.
The proposal made by Senator O'Toole and others is that an amendment should be made to the relevant Revenue Commissioners' regulations so that these lump sums, like other lump sums and court awards, are free of tax. That is the purpose of this amendment. If the Minister of State would like to propose an alternative wording to address this issue, I will be happy to withdraw amendment No. 142a.
I support this amendment, which was brought to my attention by Senator O'Toole. It would be a positive change in public policy to encourage that awards be made in this form. It would be fairer for a court award to be more clearly related to the needs of the person in respect of whom it is made. The provisions made for people who may be facing into impairment of their faculties for some time should be reliable. Socially, it would be a better way to proceed. There would be some benefit to insurance companies as presumably it would reduce the burden on insurance premiums, in so far as the entirety of a large sum would not have to be paid at the same time. I am sure it would be possible for the Minister to ensure that any such benefit would be properly shared with consumers, in terms of reduced premiums, rather than simply increasing the profits of insurance companies. It seems to me that this would be a very positive move. As Senator O'Toole has done a great deal of work in this field through the Personal Injuries Assessment Board and elsewhere, his thinking in this regard deserves to be considered seriously by the Government.
The Minister for Finance is favourably disposed to an amendment along these lines. I can inform the committee that the issue has been examined within the Department of Finance. The President of the High Court recently asked Mr. Justice Quirke to draw up terms of reference for a working group and to establish such a group, to be chaired by him, to examine the possibility of introducing case management in medical negligence cases in the High Court. It will be open to the working group to make a specific recommendation that a statutory scheme be established relating to the payment of compensation in the form of periodic payments in catastrophic injury cases. While the Minister is favourably disposed in this matter, it would be premature to provide exemptions for periodic payments in tax law prior to the group's findings and recommendations becoming available and being fully considered by the relevant Department. As the acceptance of this amendment would mean tax law is moving ahead of general law, the Minister is not in a position at this point to accept it. As I have said, he is favourably disposed to a move in this direction.
Does the Minister have a timeframe for the report of Mr. Justice Quirke's examination? Two important issues arise in this context. Many people who get large sums of money, such as adults who have been injured badly, find it difficult to manage that money. In some cases, they run through the money very quickly. Other people, including relatives, may approach them and successfully put pressure on them to hand over large shares of the compensation. If people are kind, they will want to help their relatives. A sum of money may initially seem very big, but if one has many relatives, all of whom expect some kind of present or contribution, one's money will go pretty quickly. This is quite urgent.
There are many difficulties with the Office of Wards of Court. The parents of children who have been damaged and in whose names significant sums of money have been lodged with the Office of Wards of Court often want far more frequent and up-to-date information. Some years ago, the Office of Wards of Court, which used to invest in Government stocks and bonds only, started to invest in equities as well. I do not think the percentage of these moneys invested in equities is huge. Some equity-based funds have fallen dramatically. There is a great need for information.
We all agree with that.
I am just commenting on the great need for information.
The Chairman is very impatient.
If the Deputy were sitting up here, he would not be too patient.
Other Deputies and I have raised the matter in the House and when we did so, the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, wrote to a judge in the High Court informing him that I had raised this. He had a word in my ear to advise me of that. The Minister of State has given a decent answer.
Is there a question?
It is an important issue for families. I asked him about the timeframe. The issue of the wards of courts office is related and if he has the scope of Mr. Justice Quirke's report, I would be grateful if he made a copy available. His more senior Minister, Deputy Dermot Ahern——
He is not my senior Minister.
Is the Deputy asking a question?
——who we know is the Government rottweiler, could not even raise it.
We should move from extraneous matters.
I thank the Minister of State.
He is not my senior Minister. The case is well made and the Minister for Finance is sympathetic to the suggestion that compensation payments for catastrophic injury could be made on a periodic or phased basis as opposed to a once-off lump sum payment, which can lead in certain cases to either over or under-compensation.
It is crucial that a guide should be established in order to assist the courts to determine the appropriate award to be made by periodic payment order in the cases of catastrophic injury. In addition to my earlier comments, it is understood that the State Claims Agency is engaging with the Department of Justice, Equality and Law Reform on the issue. The Government does not have direct control over how soon an inquiry commissioned by the President of the High Court will be ready but the Deputy, in her remarks, which I am sure will be noted, has underlined the urgency of the matter. I accept that.
Is the amendment being pressed?
I will introduce it again on Report Stage and see if the Minister can provide the timetable and scope of Mr. Justice Quirke's work.
Amendment, by leave, withdrawn.
Sections 154 and 155 agreed to.
Schedule 1 agreed to.
SCHEDULE 2.
Amendment No. 143 is related to amendments Nos. 144 and 145 and the amendments will be discussed together.
I move amendment No. 143:
In page 213, in column 3, to delete lines 22 to 26.
I am not sure when we will finish but I inform the committee that the Minister for Finance may wish to bring forward a Report Stage amendment relating to the mid-Shannon tourism infrastructure investment scheme.
Will the Minister of State elaborate on that?
I cannot.
We cannot do so at this stage. We will not deal with the mid-Shannon or anything else.
I have three sentences to read, if that is all right.
The Minister of State could pass us the note.
I called the Minister of State to speak on amendments No. 143 to 145, inclusive.
The Minister of State has positive news so we should hear it.
The Secretary General of the Department of Arts, Sport and Tourism has written to the Department of Finance in the past couple of days.
Which section are we dealing with?
I am referring to the possible Report Stage amendment.
No, we are dealing with amendment No. 143.
With all due respect, the Minister of State is willing to read out what is in the section and should be allowed to do so. This is very relevant to us in the Shannon region.
The Minister of State should deal with amendment No. 143.
On a point of order, the Minister for Finance, Deputy Lenihan, told us he would give us copies of the notes when members requested it. I request that we get the note on the mid-Shannon provision.
I would also like the note.
Everybody should get it.
The Chairman will not allow it to be read out.
There is one for everybody in the House.
I am afraid it also has an annotation saying that I must read it out before the end of Committee Stage. I will provide the note.
On a point of order, my understanding is that the Minister is technically required to read the note out on this Stage.
Technically, the Minister must notify that he will bring forward an amendment on Report Stage. He does not have to read the detail of the amendment.
He must identify the subject matter of the amendment.
I think he does.
The Deputy is wrong.
I would like to hear the Minister of State's view on that.
The Minister of State should speak to amendment No. 143.
Schedule 2 to the Bill, as initiated, contains consequential amendments to the VAT Act with regard to section 124. It is necessary to amend the Schedule and the amendments are necessary to correct drafting errors.
Amendment agreed to.
I move amendment No. 144:
In page 213, in column 3, to delete lines 27 to 31 and substitute the following:
"(c) In subsection (10)—
(i) substitute "paragraph 1(1) of Schedule 2" for "paragraph (i)(b) of the Second Schedule”, and
(ii) substitute "that Schedule" for "the Second Schedule", where secondly occurring;".
Amendment agreed to.
I move amendment No. 145:
In page 213, in column 3, to delete lines 36 to 40 and substitute the following:
"(a) In subsection (7)—
(i) substitute "paragraph 1(1) of Schedule 2" for "paragraph (i)(b) of the Second Schedule”, and
(ii) substitute "that Schedule" for "the Second Schedule", where secondly occurring;".
Amendment agreed to.
Schedule 2, as amended, agreed to.
SCHEDULE 3.
Amendments Nos. 146 to 150, inclusive, are related and will be discussed together.
I move amendment No. 146:
In page 218, between lines 5 and 6, to insert the following:
"(a) by inserting in subsection (1) the following definition after the definition of “electronically supplied services”:
" ‘enactment' means an Act or statutory instrument or any part of an Act or statutory instrument;";".
Schedule 3 to the Bill, as initiated, contains amendments and repeals of provisions in the VAT Act in preparation for the consolidation of that Act. It is necessary to amend this schedule. The first amendment inserts a definition of enactment into the VAT Act. The second amendment is a technical amendment. The third amendment relates to refurbishment of property and is necessary to ensure that when a tenant assigns or surrenders a lease, the tenant must calculate the tax liability on the capital good that is the refurbishment rather than the capital good that is the property. The fourth and fifth amendments are necessary to correct drafting errors.
Amendment agreed to.
I move amendment No. 147:
In page 222, line 4, after "12E" to insert "(inserted by the Finance Act 2008)".
Amendment agreed to.
I move amendment No. 148:
In page 222, line 22, to delete "those goods" and substitute "the refurbishment".
Amendment agreed to.
I move amendment No. 149:
In page 223, to delete lines 27 to 42 and substitute the following:
"(10A) Subsection (10) applies to a transfer of a capital good if—
(a) the transfer is of a kind referred to in section 3(5)(b)(iii), and
(b) but for the application of section 3(5)(b), that transfer would be a supply—
(i) that is exempt in accordance with section 4B(2) or section 4C(2) or (6)(b), or
(ii) in respect of which tax is chargeable in accordance with section 4C(6)(a).”.”.
Amendment agreed to.
I move amendment No. 150:
In page 224, to delete lines 23 to 27 and substitute the following:
" "(4) A claim for a refund under this Act may be made only within 4 years after the end of the taxable period to which it relates.".".
Amendment agreed to.
Schedule 3, as amended, agreed to.
Schedule 4 agreed to.
As the proceedings on the relevant sections have concluded, the postponed division on amendment No. 130 will now be taken.
Amendment put.
The Committee divided: Tá, 5; Níl, 7.
Tá
- Barrett, Seán.
- Bruton, Richard.
- Burton, Joan.
- Flanagan, Terence.
- O’Donnell, Kieran.
Níl
- Ahern, Michael.
- Ahern, Noel.
- Andrews, Chris.
- Fahey, Frank.
- Healy-Rae, Jackie.
- McGrath, Michael.
- Mansergh, Martin.
Amendment declared lost.
Section 146 agreed to.
Amendment No. 151 not moved.
Title agreed to.
I thank the Minister of State and his officials for attending. I thank Deputies Bruton, Burton and other members for their contributions over the past few days.
Bill reported with amendments.