Tax Appeals Commission determination 38TACD2023 regarding Income Tax, 2023

• Administrative Decision Number: 38TACD2023
• Year: 2023
• Date: 20 December 2022
• Subject Matter: Income Tax
• Respondent: THE REVENUE COMMISSIONERS

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38TACD2023

Between

Appellant

and

THE REVENUE COMMISSIONERS

Respondent

Determination

Introduction

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

as an appeal against an assessment to income tax raised by the Revenue

Commissioners (“the Respondent”) on 27th July 2021.

2. The assessment covers the year 2017 and the income tax on the assessment amounts

to €27,951. The Appellant makes his appeal in accordance with the provisions of

section 933 (1) Taxes Consolidation Act 1997 (“TCA 1997”).

Background

3. The Appellant is a director of Limited (“the company”)

and has held that position since the company was incorporated on .

The company is a United Kingdom (“UK”) resident company and trades solely in the

UK providing concrete frame contractor works in that market.

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4. The Appellant held 30% of the company’s ordinary share capital and as such was

considered a proprietary director. A proprietary director is a director of a company who

is able to control more than 15% of the ordinary share capital of a company, either

directly or indirectly.

5. On 21st February 2017, the Appellant transferred the entire amount of his shareholding

in the company to his adult children. The effect of transferring his shareholding in the

company was that he was no longer considered to be a proprietary director from the

date of the transfer as his shareholding was reduced to nil. The Appellant continues

working for the company in the role of non-proprietary director.

6. In 2017, the Appellant was paid a salary which equated to . This was split to

the sum of for the period 1st January 2017 to 21st February 2017 and

for the period 22nd February 2017 to 31st December 2017.

7. The Appellant claimed Transborder Worker’ Relief (“the relief”) pursuant to section

825A TCA 1997 with respect to his UK employment income received from the company

during the period in which he was employed as a non-proprietary director. The relief

permits qualifying individuals who are tax resident in Ireland, but work and pay tax in

another country, to effectively remove their earnings in respect of a qualifying foreign

employment from liability to Irish tax where foreign tax has been paid on those

earnings.

8. Within the Appellant’s tax returns for 2017 and 2018, he included an identical

expression of doubt which stated:

“The relevant section of the Act has been considered and on the basis of the

legislation it would appear that the relief is available for the remuneration paid

for the period from April [sic] 2017. However, when the published Revenue

documentation is considered it would appear that the relief is intended to apply

to individuals who commute on a daily/weekly basis to their place of work

outside the State. In this case, the taxpayer commutes to the UK generally one

day each month and for the relevant period he has been in the UK for not more

than three days in any one month. The doubt is therefore whether the relief is

available in the circumstances of this case.”

The purpose of an expression of doubt is to indicate to the Respondent a genuine

doubt about the application of law or the treatment for tax purposes of any matter

contained in a tax return. The benefits of making a genuine expression of doubt is if it

is subsequently found that the view taken by the taxpayer was incorrect, the taxpayer