I am advised by Revenue that an individual’s tax residence position continues to be determined in accordance with the provisions of section 819 Taxes Consolidation Act 1997. In that regard, an individual’s tax residence status is determined by reference to his or her presence in the State during a particular tax year. For example, an individual will be considered tax resident in the State if he or she is present in the State for:
- 183 days or more in a tax year; or
- 280 days or more in a tax year and the preceding tax year when taken together, with a minimum of 30 days in each year.
An individual’s liability to Irish income tax is determined by reference to the source of his or her income and his or her Irish tax residence, ordinary residence and domicile status for a particular year.
Prior to COVID-19, Revenue guidance stated that where an individual is prevented from leaving the State on his or her intended day of departure due to extraordinary natural occurrences or an exceptional third party failure or action – none of which could reasonably have been foreseen and avoided – the individual will not be regarded as being present in the State for tax residence purposes for the day after the intended day of departure, provided the individual is unavoidably present in the State on that day due only to ‘force majeure’ circumstances.
Revenue’s interpretation of “force majeure” has been updated to consider those cases who, as a result of COVID-19, have had a departure from the State restricted directly as a result of the emergency situation. In any case where a taxpayer relies upon “force majeure”, it will be necessary for him or her to be able to appropriately support this position (i.e. information/documentation in relation to how a departure from the State has been prevented due to restrictions in place). This is likely to occur when an individual reviews their tax position for 2020 with a view to filing their 2020 return of income which is due by 31 October 2021.
It is not possible to determine the number of individuals who have benefitted from the updated Revenue guidance. Indeed, it is not possible to determine whether the additional time spent in the State will have materially affected an individual’s Irish tax residence position in any event. For example, a relatively short period of additional days spent in the State is unlikely to result in a non-resident individual being considered tax resident for a particular year. A non-resident individual may, however, continue to have a liability to Irish income tax to the extent they have Irish source income. This is subject to the provisions of any relevant Double Taxation Agreement.
Finally, where an individual is present in the State in 2020, his or her tax residence position should be determined on a self-assessment basis with regard to his or her presence in the State, while having regard to the “force majeure” position. The guidance on “force majeure” is included on the COVID-19 section of Revenue’s website -
https://www.revenue.ie/en/corporate/communications/covid19/compliance-with-certain-reporting-and-filing-obligations.aspx.
