DÁIL ÉIREANN AN ROGHCHOISTE UM AIRGEADAS, CAITEACHAS POIBLÍ AGUS ATHCHÓIRIÚ, AGUS AN TAOISEACH SELECT COMMITTEE ON FINANCE, PUBLIC EXPENDITURE AND RE- FORM, AND TAOISEACH Dé Céadaoin, 6 Samhain 2019 Wednesday, 6 November 2019 The Select Committee met at 10 a.m. Comhaltaí a bhí i láthair / Members present: Peter Burke, Joan Burton, John Deasy, Pearse Doherty, Paschal Donohoe, (Minister for Finance) Michael McGrath, Michael Moynihan+ + In éagmais le haghaidh cuid den choiste / In the absence for part of the meeting of Deputy John McGuinness. I láthair / In attendance: Deputies Richard Boyd Barrett, Michael Fitzmaurice, Danny Healy- Rae, Mattie McGrath and Denis Naughten. Teachta / Deputy John McGuinness sa Chathaoir / in the Chair. 1 SFPERT Finance Bill 2019: Committee Stage (Resumed) NEW SECTION Acting Chairman (Deputy Peter Burke): With the agreement of members I will take the Chair temporarily in place of our Chairman. Is that agreed? Agreed. I remind members to ensure their mobile phones are switched off. This is important as it causes serious problems for broadcasting, editorial and sound staff. We will continue our consideration of the Finance Bill 2019. I welcome the Minister, Dep- uty Donohoe, and his officials to the meeting. Our timetable will include breaks from 1 p.m. to 2 p.m. and from 6 p.m. to 7 p.m. These are marked on the draft timetables. Is that agreed? Agreed. We will resume our discussion on amendment No. 70, in the name of Deputy Doherty. This is a new section. Deputy Pearse Doherty: I move amendment No. 70: In page 82, between lines 29 and 30, to insert the following: “Report on restoring cap on intangible assets 34. The Minister shall, within 6 months of the passing of this Act, prepare and lay before Dáil Éireann a report on restoring the 80 per cent cap on intangible assets onshored between 2015 and 2017 that can be written off against profits at the rate of 100 per cent.”. This is the report on intangible assets. We have discussed this on numerous occasions at the Committee on Finance, Public Expenditure and Reform, and Taoiseach since Seamus Cof- fey produced his report and acknowledged that there was a change around the taxation of intangible assets that were onshored. That change only applied to intangible assets that were onshored from the date the change took effect. Seamus Coffey had guedar for, and it was his intention in the report and subsequently as the author of the report on behalf of the De- partment of Finance, that all intangible assets should be taxed regardless of when they were brought onshore. This is not an issue of retrospective taxation because it is not the case that we would look back to tax and claw back the money from intangible assets onshored before the date as in the Finance Bill two years ago. It is not that. It is about applying the tax to intangible assets that companies would use this year or next year to reduce their tax liability, and that should not be allowed. The tax should apply in the same way it applies for intangible assets that were onshored last year. Again, the mechanism we have here is to look for a report on this issue. This is not a mi- nor issue. It is a tax measure that was argued for by the expert person who was commissioned by the Department of Finance to report on this, and who has done other work on behalf of the Department on corporation tax. This brings in €750 million per annum. There is a strong argu- ment for a piece of work to be done on this. I would like to see it enacted in the Finance Bill this year, but at the very minimum I would like a commitment from the Government to look at this issue again to consider the pros and cons of giving effect to what the author of the report had intended in the first place. Minister for Finance (Deputy Paschal Donohoe): Capital allowances for intangible as- sets were introduced in the Finance Act 2009 to support the development of the knowledge economy and the provision of high quality employment. When the capital allowances were 2 6 November 2019 introduced a restriction was provided to cap at 80% the amount of income the allowances could be used against in any year. The cap was removed for a period between 2015 and 2017 to bring the tax treatment of intangible assets into line with the tax treatment of similar assets in other ju- risdictions and to enhance the competitiveness of Ireland as a location for companies to develop intellectual property. This was in recognition of the fact that investment in growth in OECD economies is increasingly being driven by investment in intangible assets. However, following a significant increase in the use of capital allowances in 2015, the 80% cap was restored in the Finance Act 2017. For the purposes of certainty, changes to tax law are generally made on a prospective basis, such that they apply only from the date on which they have had legal effect. It should be noted that the operation of the cap is a timing matter. The measure has no effect on the overall quantum of capital allowances for intangible assets available to use against the relative trading income. Any amounts restricted in one accounting period as a result of the cap are available for carry-forward and use in a subsequent accounting period, subject to the appli- cation of the cap in that period. I am advised by Revenue that, in the short term, there could be a large theoretical cashflow gain, tentatively estimated to be in the region of €722 million, from the introduction of an 80% cap on intangible assets on-shored between 2015 and 2017. However, it is important to clarify that such a change would not lead to more tax overall and this is simply a timing matter. To present this as additional ongoing tax for the Exchequer would not be correct. Having regard to the depth of discussion on record with regard to this issue, I do not believe a further report is needed. For this reason, I am not in a position to accept the Deputy’s proposed amendment. More broadly, the Deputy, in his opening contribution, made the point that this is not a mi- nor matter and he is correct. In terms of the debate that I believe will ensue in the work that is taking place in the OECD and the Irish response to that work, which I have outlined elsewhere - I look forward to having a debate in this committee regarding the direction in which I think we should go - the issue of the treatment of the digital economy and how intangible assets are taxed both globally and in Ireland will be areas of increasing debate and focus. While I do not believe that a further report is merited given how much debate has already taken place on the matter, if there are particular areas in which the Deputy has information needs and would like me to do further work on, I will be happy to do so. I am also happy to supply the information directly to him. Deputy Pearse Doherty: I thank the Minister for his reply, in respect of which there are two issues arising. It is not a theoretical cashflow issue. Rather, it is a cashflow and it does bring in €750 million. To suggest that it is theoretical is to suggest it is not there when it is there. If we decide to amend this, there will be an additional €750 million that can be accrued to the State coffers next year. The Minister is correct that this may be a timing issue but he failed to mention that there is no certainty in this area. For example, company A can reduce its tax liability by claiming 100% of the intangible assets that were on-shored at a specific period or to use them to write down its tax bill. At a point in time when those credits are all used, the company’s tax liability will increase, but there is no certainty that the structure of that company in, say, eight years’ time, will be same or the company will still be resident in Ireland. There is a risk. That risk could be minor if we are talking about small change, but we are not. We are talking about a cashflow for the State of €750 million per annum. Therefore, there is a risk here and it should be identified. It has been identified by Mr. Coffey who produced the report and the recommendations for the Department of Finance. The risk is real. Let us say, for example, that Vodafone pulled out of Ireland. If it were able to carry forward 3 SFPERT 100% of intangible assets, by the time all of the credits were used and it was eligible to pay proper tax, it would no longer be here to pay that tax and we would have lost money. Any of these companies can restructure. In one case, we are talking about a multibillion euro company. It is advantageous for companies to change their structure for taxation purposes, which could leave us, at a point, looking back at money forgone because while we thought the issue was a timing one, the structure is no longer the same in regard to how companies are taxed in this jurisdiction. It is far more than a timing issue. If there was a guarantee that everything would remain the same forever and a day, then it is a timing issue.