Coronavirus - Irish corporate tax residency considerations arising from Covid-19 - Ireland

• Ireland

27-03-2020

Overview

In light of the numerous travel restrictions and other measures imposed by countries arising from the Covid-19 outbreak, companies may need to consider how they conduct their business in the coming weeks and months in order to ensure that their corporate tax residency status is safeguarded. In particular, the company’s directors may not be in a position to be present in the jurisdiction where the company’s place of effective management is located. Irish Revenue has provided guidance on the topic of corporate tax residency and presence in or outside Ireland resulting from Covid-19 related travel restrictions.

Irish tax residency rules

All companies incorporated in Ireland on or after 1 January 2015 are considered to be Irish tax resident unless the company is regarded as tax resident in another jurisdiction under the provisions of a double taxation agreement (“ DTA ”) which Ireland has entered into. The majority of the DTAs which Ireland is a party to contain provisions of fiscal domicile. This means that a company will be regarded as resident in one of the countries under the relevant DTA if it is resident in that particular country pursuant to its domestic tax laws. Where a company is deemed to be resident both in Ireland and another DTA country, the tie-break clause in the relevant DTA generally provides that the company will only be regarded as resident where it is effectively managed. In certain instances, Irish Revenue and the relevant tax authority in the other DTA country may need to decide on the company’s place of residence by way of mutual agreement.

Companies incorporated in Ireland prior to 1 January 2015 will generally be regarded as Irish tax resident where their central management and control is located in Ireland. These rules will continue to apply until 31 December 2020, subject to certain exceptions, at which point the above post 1 January 2015 rules will apply.

Central management and control

A company will generally be treated as having its central management and control where key management and commercial decisions that are necessary for the conduct of the company’s business as a whole are in substance made. In determining this, a key factor is the location of the company’s board meetings at which key strategic decisions of the business are typically made.

Ideally, to establish its central management and control in Ireland, the board of directors of the company should take all decisions affecting matters of policy or management of business at board meetings held in Ireland. In particular, it is generally recommended that all decisions relating to financing, investment policy, the expansion of the company’s business and the entering into of any material contracts by the company should be taken in Ireland. In additional, all meetings of the board of directors should be held in Ireland. Insofar as possible, the majority of the board of directors and the majority of those directors attending meetings should be residents of Ireland. If this is not possible, then there should be at least as many Irish resident directors as non-resident directors from any other country.

To the extent that any strategic meetings of a company are not undertaken in Ireland, but are in fact conducted in a jurisdiction outside Ireland, or where the persons that control the company’s business operate from outside Ireland, it may be open to the relevant tax authority in that jurisdiction to assert that the company is either resident there under its domestic tax laws, or has a taxable presence in its jurisdiction through a permanent establishment, and, as such, that company is within the charge to tax in that jurisdiction in respect of some or all of its profits.

Board meetings

Taking into account the current situation with Covid-19, understandably, directors may not be in a position to undertake meetings in person in Ireland. As a result, any activities of the directors conducted outside of Ireland may leave open the prospect of potentially creating a taxable presence for the company outside Ireland (as outlined above). While Irish tax residency is determined on a continuing basis and any board meeting undertaken during this unprecedented time may be deemed a non-routine event in such determination, it is important to consider implementing certain measures to mitigate any possible adverse tax impact.

For meetings taking place during this period, the following practical approaches can be taken in order to assist in maintaining the company’s central management and control in Ireland:

• Review the company’s Constitution - provisions surrounding the location of meetings and the possibility of virtual meetings should be reviewed, in conjunction with the provisions of the Companies Act 2014
• Record keeping – it should be noted in the board minutes that the procedures being used for the virtual meeting are being carried out as a result of Covid-19 and that, but for travel restrictions associated with Covid-19, the directors would have all been physically present in Ireland to participate in the meeting
• Use of alternate directors - the possibility of appointing alternative directors who are located in Ireland should be considered as a solution to the issue of any directors who are not capable of being physically present in Ireland when making strategic decisions of the company
• Conduct and initiation of the virtual meeting – the virtual meeting should be conducted by a chairperson who is physically present in Ireland and the meeting should be initiated by him/her from Ireland

• Postponement of certain meetings - any board meetings scheduled to take place that are non-essential should be postponed until such time that all the directors can be physically present in Ireland

Irish Revenue guidance

In e-Brief 46/20, Irish Revenue confirmed that in circumstances where individuals in certain capacities (including as a director) are present outside Ireland because of travel restrictions related to Covid-19 but who would have otherwise been present in Ireland, Irish Revenue is prepared to disregard such presence for Irish corporation tax purposes.

Conversely, where an individual in the specific capacities is present in Ireland in these circumstances, Irish Revenue will also be prepared to ignore such presence for Irish corporate tax purposes. This will be relevant for non-Irish resident companies in terms of creating a taxable presence in Ireland unintentionally.

Irish Revenue have advised that, in the above scenarios, the relevant individual and company should both maintain records of the fact and circumstances of the bona fide presence in or outside Ireland (as the case may be) should Irish Revenue seek evidence that such presence in fact resulted from Covid-19 related travel restrictions.

Comment

The area of corporate tax residency can be quite complex in practice and, as such, this issue should be given adequate consideration in light of the current situation with Covid-19. Where a company seeks to maintain its Irish tax residency status, appropriate steps should be taken in order to ensure that the company continues to be centrally managed and controlled in Ireland. This includes the manner in which any essential board meetings are conducted in this period (as outlined above).

The confirmations provided by Irish Revenue recently are to be welcomed during this period of uncertainty and it is hoped that further guidance will be forthcoming as the situation evolves further. However, it should be noted that the Irish Revenue guidance is limited to relevant Irish tax aspects and, as such, the foreign tax implications of directors being present outside Ireland will also need to be considered fully.

For support on legal issues facing your business in light of the outbreak of Covid-19, please visit our Coronavirus hub to get our latest information and guidance.

For more information please contact

Alan Connell, Managing Partner and Head of Tax - alanconnell@eversheds-sutherland.ie

Robert Dever, Associate in our Tax department - robertdever@eversheds-sutherland.ie

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