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Saturday 15 December 2018

Finance Bill raises as many questions as it answers

The lack of clarity in the changes on stamp duty relief for young farmers is a convoluted minefield

The Finance Bill has included a number of changes to the Young Trained Farmer Stamp Duty Exemption Scheme
The Finance Bill has included a number of changes to the Young Trained Farmer Stamp Duty Exemption Scheme

Martin O'Sullivan

In my column two weeks ago, I heralded the 2019 Budget as being reasonably good for farmers, but I included the caveat that people should watch out for the 'sneaky stuff' in the Finance Bill. Well, sure enough I wasn't disappointed.

The Finance Bill has included a number of changes to the Young Trained Farmer Stamp Duty Exemption Scheme that would appear to fly in the face of promoting farm succession, which is what the measure was intended for in the first place.

The Government will plead innocence as this relief, along with certain other reliefs such as Stock Relief (100pc scheme) and Succession Farm Partnership tax incentives, constitute EU State aid and must comply with EU State aid rules - in particular those rules dealing with "start-up aid for young farmers and the development of small farms".

The exemption was due to cease on December 31 but, thankfully, it was announced in the recent Budget that it will continue to be available until December 31, 2021.

That said, it contains a number of significant changes and its extension to 2021 is subject to Ministerial Order following notification to the EU Commission.

Consequently, it is far from clear if the extension will be cleared for take-off by the December 31 deadline. The extended scheme contains a number of new conditions and limits that intending applicants should be aware of. However, firstly I will list the basic requirements for qualifying for the relief which have not changed and are as follows:

* the transferee must be under 35;

* the transferee must hold a relevant agricultural qualification at the time of transfer in order to claim the exemption or they may acquire the qualification within four years and claim a rebate of the stamp duty paid;

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* only agricultural land will qualify, along with such farm houses and buildings on the land that are of a character appropriate to the land. It should be noted that land occupied as commercial woodland is not eligible;

* the land which is the subject of the transfer must be retained for five years or, if disposed of, must be replaced by a similar value of land. Where the required agricultural qualification is acquired after the date of execution of the deed of transfer, the five-year period commences on the date on which the claim for a refund is made;

* the transfer cannot be subject to a revocation clause but a transferor can retain certain rights such as rights of residence, support and maintenance;

* the transferee must devote at least 50pc of their normal working hours to farming.

WORKING TIME RULE

In considering whether the normal working time requirement is fulfilled, Revenue say in their Tax & Duty Manual that it is appropriate to be flexible.

It can be accepted that "normal working time" (including on-farm and off-farm working time) approximates to 40 hours per week.

This will enable farmers with off-farm employment to qualify for the relief provided they spend a minimum of 20 hours working per week, averaged over a year, on the farm.

If a farmer can show that his or her "normal working time" is somewhat less than 40 hours a week, then the 50pc requirement will be applied to the actual hours worked - subject to being able to show that the farm is farmed on a commercial basis and with a view to the realisation of profits.

It is expected that, in the majority of situations, it should be clear from the level of farming activity being carried on that the normal working time requirement is satisfied.

If there is any doubt, Revenue will consider all information (including farming records) provided by a farmer in relation to his or her normal working time and farming activities.

While the wording of the provision is still a bit confusing, it can be taken that if an individual can show that he/she clearly works at least 20 hours per week on the farm, they should qualify.

Should Revenue decide to do a follow-up compliance check or audit on a claim for relief, it will consider all relevant information (including farming records) when deciding on whether relief was correctly claimed or not.

SCHEME CHANGES

The scheme now has a number of newly imposed limits and requirements as follows;

* a farm business plan is now required;

* a lifetime ceiling of €70,000 applies to the value of aid received under the Stamp Duty, Stock Relief (100pc scheme) and Succession Farm Partnership Schemes.

* the Stamp Duty Exemption is confined to start-up situations and not subsequent transfers or purchases.

FARM BUSINESS PLAN

The young trained farmer availing of the exemption must submit a business plan to Teagasc before the execution of the deed transferring the land.

Where the required agricultural qualification is acquired after the date of execution of the deed of transfer, the business plan must be submitted before a refund is claimed.

Teagasc has published a business plan template (My Farm, My Plan - Planning for My Future) to assist young trained farmers to prepare a farm business plan.

A non-Teagasc adviser can assist in preparing the business plan, but the plan must be certified by Teagasc and when submitting the plan to Teagasc, the young trained farmer declares that he or she is responsible for the content and implementation of the business plan.

A certificate issued by Teagasc then confirms that the applicant has satisfactorily completed a business plan that has been validated by Teagasc. This certificate can be accepted by Revenue as evidence of compliance with the requirement to submit a business plan.

A business plan should be implemented within the period of nine months after the stamp duty return claiming the relief has been filed, or after the refund has been claimed - whichever situation applies.

CEILING ON TAX RELIEF

A lifetime ceiling of €70,000 now applies to the amount of aid (tax relief) granted to a young trained farmer under EU regulations governing stamp duty relief, stock relief and succession farm partnerships. Revenue have not made it clear as to whether the actual relief is calculated as being a saving of 1pc or 6pc in the case of the Stamp Duty Exemption.

This needs to be clarified as the ceiling could easily be breached when one considers that a 6pc saving would amount to €72,000 on a farm of say 120 acres valued at €10,000 per acre.

This means that a farm worth more than €1.16m in value could exceed the lifetime ceiling.

In any event, where young farmers avail of all the relevant measures it boggles the mind as to how this ceiling is going to be tracked and monitored, particularly by the young trained farmer not to mention the tax authorities.

LIMITED TO START-UP AID

A further amendment to the scheme that definitely falls into the category of 'sneaky stuff' refers to the Stamp Duty Exemption in the context of EU rules on "start-up aid for young farmers and the development of small farms".

Part of the definition of "young farmer" in Article 2 of the EU Regulations is a person who is setting up for the first time as head of a farm holding.

The stamp duty relief is therefore restricted to this situation and is not available for ongoing transfers of land.

The young farmer must exercise effective and long-term control of the holding in terms of decisions relating to management, benefits and financial risks.

This would appear to suggest that applicants will only get one bite of this particular cherry and any subsequent transfers or purchases of land will not be eligible. This will have serious implications in regard to purchases of land where the stamp duty is 6pc.

Martin O'Sullivan is the author of the ACA Farmers Handbook. He is a partner in O'Sullivan Malone and Company, accountants and registered auditors: www.som.ie

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