The Irish High Court recently provided some useful clarification in the area of the transfer of personal retirement savings accounts ("PRSAs") overseas. The case of Michael O'Sullivan v Canada Life Assurance (Ireland) Limited involved a PRSA contributor who had requested Canada Life, the PRSA provider, to make a transfer in respect of his fund to a pension arrangement based in Malta. Mr O'Sullivan was neither resident nor employed in Malta at the time of the request.
Canada Life sought the consent of the Revenue Commissioners to the proposed transfer. Revenue indicated that it was for Canada Life to determine whether the transfer could proceed, having regard to the Occupational Pension Schemes and Personal Retirement Savings Accounts (Overseas Transfer Payments) Regulations 2003 (the "Transfer Regulations") and related Revenue circulars and guidance, in particular a requirement outlined in the circulars that the transferee sign a declaration that the transfer is for "bona fides [good faith] reasons and cannot be primarily for the purpose of circumventing pension tax legislation and Revenue rules".
Canada Life indicated that it was not willing to facilitate the transfer. The reasoning given was that, as Mr O'Sullivan did not reside in and nor was he employed in Malta, it was not satisfied that the transfer was for bona fides reasons as required by Revenue. Mr O'Sullivan then issued proceedings against Canada Life seeking to compel them to facilitate the transfer. Revenue were joined as an amicus curiae (a friend of the court) to the proceedings. The term describes someone who offers information of assistance to the court, but who is not a party to the case.
The Transfer Regulations provide that, subject to certain conditions, a member of a pension scheme, or a contributor to a PRSA, may transfer his fund to an overseas arrangement. The term "overseas arrangement" is defined in the Transfer Regulations as "an arrangement for the provision of retirement benefits established outside the State".
Mr Justice Ryan examined whether, in the case of the overseas transfer of PRSA assets, there is a requirement for an employment connection with the jurisdiction to which the funds are being transferred. Although a strict reading of the legislation would appear to indicate...