Q1 2020 - End of the Road for the ‘Double Irish’

February 24, 2020

By Cormac Doyle and Brian Frawley

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For many years, numerous companies adopted what became a common global strategy of “offshoring” intellectual property (“IP”) in jurisdictions with favourable tax benefits and incentives to keep the effective rate of tax on related profits at a low level.

One of the most popular strategies involved the use of the “Double Irish” structure.  This required the utilization of two Irish incorporated companies: one being structured as Irish tax resident and the other structured as being managed and controlled from a low or nil tax “offshore” jurisdiction.

In this structure, the IP rights were held by the non-resident Irish company with a licence granted to the Irish resident company, which allowed royalty and related income to flow from customers through Ireland with a marginal tax charge arising. In some cases, a further company, typically incorporated in the Netherlands, was inserted in the structure so royalties would flow from the Irish tax resident company to the Netherlands and onward to the non-resident Irish company.

TIME TO REVIEW

Any business using this structure needs to take immediate action.

Irish tax legislation was amended effective from January 1, 2015 to prevent the incorporation of an Irish company which would be treated as tax resident in an “offshore” tax jurisdiction that did not have a Double Tax Treaty in place with Ireland.  Grandfathering rules were introduced for existing structures, which allow the residence treatment to survive until December 30, 2020.

Effective January 1, 2021, the Irish tax rules will deem any Irish incorporated company as tax resident in Ireland, unless it is managed and controlled from a country within the European Union or with which Ireland has a Double Tax Treaty in place.

In addition to this, the Organization for Economic Co-operation and Development (“OECD”) have concluded the Base Erosion and Profit Shifting (“BEPS”) programme, which refers to tax planning strategies used by multinational enterprises that exploit gaps and mismatches in tax rules to avoid paying tax, and the recommendations of that initiative are being implemented globally by tax authorities and governments, including Ireland.  Ireland has adopted the OECD recommendations around transfer pricing into domestic legislation effective from January 1, 2021.  Part of this adoption will be the implementation of the provisions of development, enhancement, maintenance, protection and exploitation (“DEMPE”), which require a company to consider multiple factors when allocating IP-related profits to group companies.  These factors include consideration of which entity is carrying out each of the five DEMPE functions, and in which jurisdictions.

ACTION NEEDED

If your business is operating through an international structure that includes an Irish incorporated, but non-resident company and/or you have IP held outside your country of establishment, you need to take action now to review your tax position in light of the above changes.


OUR CURRENT ISSUE: Q1 2020

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