Tax Appeals Commission determination 75TACD2024 regarding EWSS, 2024

• Administrative Decision Number: 75TACD2024
• Year: 2024
• Date: 23 April 2024
• Respondent: THE REVENUE COMMISSIONERS

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75TACD2024

Between

Appellant

and

THE REVENUE COMMISSIONERS

Respondent

Determination

2

Table of Contents

Introduction ........................................................................................................................... 3

Background ...........................................................................................................................3

Documentation Presented to the Commission ......................................................................6

Witness Evidence ...............................................................................................................24

The Appellant’s Director – Mr .....................................................................24

Mr. –The Appellant’s bookkeeper......................................................30

Legislation and Guidelines ..................................................................................................32

Submissions .......................................................................................................................38

Appellant .........................................................................................................................38

Respondent .....................................................................................................................40

Material Facts .....................................................................................................................44

Analysis ..............................................................................................................................45

Determination .....................................................................................................................54

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Introduction

1. This matter comes before the Tax Appeals Commission (hereinafter “the Commission”) as

an appeal against ten Notices of Assessment raised by the Revenue Commissioners (“the

Respondent”) pursuant to section 28B (13) of the Emergency Measures in the Public

Interest (Covid-19) Act 2020 (“EMPI Act 2020”) in respect of the Employment Wage

Subsidy Scheme (“EWSS”). The assessments were raised for the periods November 2020

to August 2021 (inclusive) and the quantum of those assessments is €93,071.

2. The assessments were raised on the basis that the Appellant had failed to demonstrate to

the satisfaction of the Respondent that its business had expected or was expected to

experience a 30% reduction in turnover or customer orders during the relevant period, in

accordance with section 28B of the EMPI Act 2020.

3. The appeal proceeded by way of an oral hearing on 29th February 2024. The Appellant

was represented by Counsel and its solicitor. Also in attendance on behalf of the Appellant

were two members of its solicitor’s team, its book-keeper, its company secretary and its

director (“the Appellant director”). The Commissioner heard sworn testimony from the

Appellant’s director and the Appellant’s book-keeper. The Respondent was represented

by Senior and Junior Counsel, its solicitor and three members of its staff.

Background

4. The EWSS was introduced by the Financial Provisions (Covid-19) (No 2) Act 2020, which

inserted section 28B into the EMPI Act 2020. The EWSS replaced the Temporary Wage

Subsidy Scheme (“TWSS”) and came into effect from 1st September 2020. The EWSS

was introduced in the context of the restrictions implemented on foot of the Covid-19

pandemic, and provided for a flat-rate subsidy to qualifying employers based on the

numbers of paid and eligible employees on the employer’s payroll, and also charged a

reduced rate of employer PRSI of 0.5% on wages paid that were eligible for the subsidy

payment,

5. The Appellant was incorporated on and registered for PREM and

Corporation Tax on 1st May 2018 and Value Added Taxation (“VAT”) on 1st September

2018. On 19 h October 2020, the Appellant registered for the EWSS with effect from that

date. When registering for the EWSS, via the Revenue Online Service (“ROS”), the

Appellant was required to make a declaration which acknowledged that it would abide by

the terms and conditions of the scheme and would undertake to retain all documents

concerning eligibility for review by the Respondent if deemed necessary. As such, the