Sunday 4 December 2016

The State huffs and puffs to avoid investment going up in smoke

Will hiking up price of cigarettes yield more than the taxes to be paid by foreign investors?

Published 16/10/2016 | 02:30

Independent TD Stephen Donnelly led the push to close the S110 ‘loophole’
Independent TD Stephen Donnelly led the push to close the S110 ‘loophole’

One of the more curious aspects of Budget 2017 was the virtual silence on the fate of the so-called 'vulture funds' and other investment vehicles that allowed foreign investors to snap up distressed Irish property assets at steep discounts on a virtually tax-free basis.

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For months the Government flailed as public anger mounted over use by investors of a series of 'tax neutral' structures, including S110 of the Taxes Consolidation Act 1997.

The benefits of using S110 for Irish property investment (not its intended use) were sublime.

One S110 special purpose vehicle (SPV) established to hold and manage Nama's €5.6bn par value Project Eagle loan book following its sale to US private equity giant Cerberus, paid just taxes of just stg£1,947 (€2,500) in 2014.

The decision to create S110 was no accident.

Indeed, it was the specific intent of the Government to create a structure to allow investors to acquire, manage and trade in a vast range of assets, including non-performing loans and mortgages, in a tax-neutral manner.

And because of its importance in the promotion of Ireland as a financial services hub, the law was extended five years ago to include even more 'qualifying assets'.

It is estimated that there are more than 600 S110s operating here.

The huge increase in the number of S110s coincided with the establishment of Nama and the sale of billions of euro worth of distressed property assets.

And, unsurprisingly, the scheme was wide open to potential misuse or abuse, despite the fact the law was intended for primarily non-Irish assets and that S110 can't be used for tax avoidance.

Whilst the 'vultures' favoured S110s, longer-term investors and private equity funds opted to acquire property in Ireland through other tax-efficient funds known as Qualifying Investment Funds (QIFs), including the Irish Qualifying Investor Alternative Investment Funds (QIAIFs) and the two-year-old Irish Collective Asset-management Fund (ICAV) .

Finance Minister Michael Noonan, under sustained pressure from Independent TD Stephen Donnelly (formerly of the Social Democrats) moved to close off the S110 'loophole' last month.

As a result, any profits or gains earned by Irish property backed S110 after September 6 last will be subject to a 25pc corporation tax, with potentially major restrictions on their tax deductible interest expenses.

Attention then turned to other funds, notably ICAVS which are fully exempt from tax on income and profits, amid concerns they too are being used by some foreign and domestic investors to avoid paying tax on rental and other income.

While it was easier to shut the door on the vultures, the Government has to tread a more careful line with the longer-term real estate investors who have suspended investment decisions pending clarity on any proposed changes to their tax treatment.

Hundreds of millions of deals have been stalled as a result of the political uncertainty surrounding QIAFs and ICAVs.

Those funds argue (privately) that they invested in Ireland on a certain basis and had a legitimate expectation about their tax treatment which, in turn, informed their decision to invest here.

Others say that any plans to change their tax treatment now could amount to a de facto 'double tax' as the discount at which they bought assets reflected the tax basis on which they invested.

Minister Noonan can't afford to scare the private equity and real estate horses whose investment is vital to Ireland's recovery and who are quietly talking about capital flight and abandoning shovels on projects already underway.

But can and should any entity be liberated from paying tax on their Irish profits?

Minister Noonan is anxious to ensure that any restrictions in respect of the acquisition of Irish property do not have adverse effects on the broader funds industry. And whatever changes are made must be politically and legally sound, especially in the wake of the €13bn Apple Tax controversy.

That's why the issue was fudged in the budget, with the bizarre declaration that the State would yield more from smokers (€65m) by pushing up the price of cigarettes than from S110 and other funds priced at a mere €50m.

The sum is a precautionary placeholder pending Thursday's publication of the Finance Bill, which will detail the changes to tax treatment of the funds.

It's a fine line to tread: ensuring investors pay their fair share of tax on their Irish profits without watching the property recovery or the funds industry go up in smoke.

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