Not just a property tax issue: The wide reach of Section 980

Section 980 of the Taxes Consolidation Act 1997 (TCA) requires a buyer to withhold 15% of the consideration and pay it to Revenue on the acquisition of Irish “specified assets”.

The obligation is on the buyer, not the seller. It applies to the disposal of specified assets which are:

• Irish land which includes buildings on such land;
• Minerals, mineral rights and exploration or exploitation rights in a designated area; and
• shares and other securities deriving value from those assets.

Very broadly, withholding can apply where there is a disposal of a “specified asset”, and the consideration exceeds the relevant monetary thresholds, and no exception applies.

If those criteria are met, the buyer must withhold 15% of the consideration and remit it to Revenue.

Vendors can obtain statutory clearance so that no withholding is required. This is provided for in Section 980 of the TCA with Revenue providing a clearance certificate.  For a non-Irish tax resident vendors this involves submitting a computation of the gain on disposal and payment of the CGT liability up front before completion or providing an undertaking from the vendors solicitor that it will be paid from the sales proceeds. 

Section 980 is a real execution risk in transactions with any Irish real estate exposure, even if the deal is not obviously a “property deal”.

The clearest examples are straightforward property disposals, such as the sale of a commercial property, the sale of a residential property (e.g. a rental house or apartment) and the sale of development land or a site.

The transaction documents should deal expressly with:

• who is responsible for obtaining a CG50 clearance certificate; and
• what happens if it is not produced by completion (typically, the buyer withholds and accounts to Revenue).

These are well understood in the market. The more challenging questions arise in transactions which are not obviously “property” deals. The most common of these are transactions that involve “land” or the sale of certain shares which derive their value from Irish located land and buildings. 

Revenue’s guidance and the legislation give “land” a wide reach. In practice, that can extend beyond the physical asset itself to interests in land such as leasehold interest and, in some cases, rights connected with land that carry substantive economic or enforcement value. The Irish High Court has ruled that a proprietary interest in land is necessary for non-residents to be within the scope of Irish CGT on such disposals. The Court decision has aligned the interpretation of "land" for tax purposes with property law concepts.

This extended concept of land is what brings loans into scope in certain cases.

Loan portfolio sales are a particular pressure point.

A simple transfer of debt should be distinguished from a transfer of debt together with the benefit of security over Irish land. Transactions may require careful analysis where the buyer acquires not only the debt but also the full benefit of related security over Irish property, particularly where that gives the buyer substantive enforcement or realisation rights over the land.

Examples that may trigger section 980 include:

• Sale of a mortgage backed loan where the buyer acquires “all rights, title and interest in and to the loans and related security”, including legal mortgages over Irish property.
• Transfers of participations where the participant effectively steps into the lender’s shoes for enforcement and property realisation.
• Structures where a security trustee holds legal title, but the economic and enforcement rights over Irish property are effectively transferred.

In each case, the question is whether the buyer is in substance acquiring merely a contractual right to cashflows, or a proprietary type interest or control over Irish land.

If it is the latter, section 980 may apply and a 15% withholding obligation can arise on the purchase price for the loans. There are certain exceptions to the applicability of Section 980 in these cases, for example where the sale of the loan is by a financial institution where such sale arises in the ordinary course of a trade carried on in Ireland through a branch or agency. 

Given typical ticket sizes in loan portfolio transactions, a failure to identify section 980 risk can be very costly.

Section 980 can also apply to shares and other securities where the greater part of their value is derived, directly or indirectly, from specified assets including land in Ireland. 

In broad terms, a disposal of shares may be caught where the shares (or other securities) derive the greater part of their value from specified assets and the other criteria for section 980 are met.

Typical scenarios include:

• Sale of shares in an Irish property SPV holding a single property or a portfolio of Irish properties.
• Sale of shares in a holding company, whether Irish or non-Irish, where the greater part of the value in the structure is attributable to Irish land. 
• Sale of a company whose main value is development land and associated permissions.

More diversified groups, where Irish property is only a small fraction of overall value, are less likely to fall within section 980 – but that is a question of fact and analysis, not assumption.

For buyers, the challenge is that the “greater part of value” test requires a balance sheet and valuation analysis, and there may be historic or indirect property holdings that need to be considered.

This should be part of the tax due diligence and signing stage analysis, not a closing day surprise.

In practice, the main situations in which a buyer can pay the consideration without withholding are:

• CG50 clearance – If the seller provides a valid CG50 certificate, the buyer may pay the full consideration without withholding. Irish resident vendors who are fully tax compliant will often obtain this as a matter of course.
• Thresholds – The legislation also contains monetary thresholds below which withholding is not required, although care is needed in applying them, particularly where transactions are linked or staged.
• Certain categories of asset – Disposals of assets that do not fall within the statutory definition of “specified assets” will sit outside section 980 altogether.

However, the onus remains on the buyer to be satisfied that an exception applies. Simply relying on the vendor’s assertion that no withholding is needed is unlikely to be sufficient.

If section 980 applies and the buyer does not withhold 15% and does not hold a valid CG50 or other clear statutory protection, Revenue can:

• assess the buyer for the amount that should have been withheld (up to 15% of the consideration);
• charge interest on the under withheld amount; and
• impose penalties, particularly where there has been a failure to take reasonable care.

A tax covenant, warranty or indemnity may help as between the parties, but it does not displace the buyer’s primary statutory exposure to Revenue. They simply provide a route for the buyer to try to recover its loss – which may be of limited value if the seller is non resident, highly leveraged or has exited the structure. In other words, the buyer can suffer an unrecoverable cost if it pays the full price to the seller and only later discovers that a section 980 withholding obligation should have been operated

For the seller, a failure by the buyer to withhold does not extinguish the seller’s underlying CGT exposure. It simply means that Revenue has two potential targets for collection and that the transaction may attract additional scrutiny.

The key is to identify section 980 issues early. Where a transaction has any Irish land element, direct or indirect, the parties should assess at the outset whether the asset being transferred could fall within the definition of a specified asset, whether the consideration exceeds the statutory threshold and whether a CG50 certificate will be needed before completion. 

For buyers, this means ensuring tax due diligence covers not only direct property disposals, but also secured loan portfolios, participations and share deals involving property-rich entities. 

Transaction documents should then allocate responsibility for obtaining any necessary clearance and include clear completion mechanics if withholding must be operated.

Section 980 is not confined to the sale of an Irish building or parcel of land. It can also arise on transfers of secured debt and on share disposals where the greater part of the value is attributable to Irish land. 

Because the withholding obligation sits with the buyer, section 980 should be treated as a core workstream on any transaction with an Irish land dimension.