A. Revenue policy on opinions/confirmations
Revenue has published detailed guidelines on the provision of opinions/confirmations in respect of tax matters. Guidelines on opinions/confirmations relating to cases dealt with by Revenue’s Large Cases Division (LCD) are contained in Tax and Duty Manual Part 37-00-40 (PDF, 138KB) (formerly Tax Briefing 4 of 2014). Guidelines relating to requests for opinions/confirmations submitted for non-LCD cases through the Revenue Technical Service (RTS) are available on the Revenue website at: RTS Guidelines (PDF, 831KB).
An opinion/confirmation will only be provided by Revenue where the issues are complex, information is not readily available or there is genuine uncertainty in relation to the applicable tax rules as set down in the legislation. An opinion/confirmation will provide Revenue’s view of the application of tax law to a particular transaction or situation and will assist the taxpayer in filing a tax return as required under law.
2. Maximum period of validity of Opinions/Confirmations
Many opinions/confirmations given by Revenue relate to once-off transactions and the question of their continuing validity does not arise. Where however, having regard to the matter on which it is provided, an opinion/confirmation is capable of being relied on by the taxpayer for a period of time, it is current Revenue policy that the maximum period for which it may remain valid without being reviewed is 5 years . However, in some cases, a shorter period of validity may be specified by Revenue. This policy applies to all opinions/confirmations regardless of when they were issued by Revenue.
Of note, it has always been the case that an opinion/confirmation will only remain valid for so long as the facts and circumstances on which it is based have not changed and the relevant legislation and practice remain in place. Furthermore, an opinion/confirmation can be reviewed by Revenue at any time, with a view to amendment or withdrawal, in the light of changes in the relevant facts, circumstances or other information, or where, in the absence of such changes, Revenue decides to reconsider its position.
B. Implementation of Revenue policy on the maximum period of validity of opinions/confirmations
1. Published Guidance
eBriefs No. 79/2016 (LCD opinions/confirmations) and No. 89/2016 (RTS Guidelines) confirm that LCD and RTS guidelines have recently been updated in line with this policy. Both sets of guidelines confirm that opinions/confirmations issued by Revenue will contain a provision setting out the maximum period for which the opinion/confirmation may be valid is 5 years, or such shorter period as may be specified by Revenue. After the maximum validity period, whether 5 years or less, an application for a renewal or extension must be made, in accordance with published guidelines, if the taxpayer wishes the opinion/confirmation to continue.
2. Opinions/confirmations issued by Revenue more than 5 years ago
All opinions/confirmations issued by Revenue are subject to a maximum validity period of 5 years, or such shorter period as may have been specified by Revenue when providing the opinion/confirmation. In line with this policy, all opinions/confirmations that were issued more than 5 years ago, and which taxpayers wish to continue to rely on, are subject to review. As taxpayers and tax agents are best placed to decide, having regard to taxpayers’ individual facts and circumstances, whether they are continuing to rely on opinions/confirmations more than 5 years after their issue , Revenue requires taxpayers to notify Revenue of opinions/confirmations that they are relying on, where they wish to continue to do so.
Accordingly, as respects any transaction, or the whole or part of any period, after 1 January 2017, taxpayers and practitioners may not continue to rely on any opinion/confirmation, which was issued before 1 January 2012 (and had not already lapsed or ceased to have effect before 1 January 2017 ), unless they have -
- supplied evidence of the opinion/confirmation, being a copy of a written communication which originated from Revenue, and
- lodged a full application for the renewal or extension of the opinion/confirmation with the Revenue District dealing with the taxpayer’s affairs
by 30 June 2017.
3. What happens after a taxpayer has supplied evidence of the opinion/confirmation and makes an application for its renewal or extension by the required date of 30 June 2017?
Acknowledgement of receipt
The Revenue District dealing with the taxpayer’s affairs will provide an early acknowledgement of the receipt of each application for the renewal or extension of an opinion/confirmation. That acknowledgement will confirm that where certain terms are met (see following paragraph), the opinion/confirmation will continue to have effect until Revenue has – following a full review of the application – provided a written response. This response will either accept, accept with amendments, or reject the renewal or extension application.
Terms on which the opinion/confirmation continues to have effect pending a review of an application
Once evidence of the opinion/confirmation has been provided and a renewal or extension application in compliance with Tax and Duty Manual Part 37-00-40 (PDF, 138KB) or the RTS Guidelines (PDF, 831KB) (as appropriate) has been made by 30 June 2017, and provided there has not been a material change in the facts and circumstances on which the opinion/confirmation is based or it had not otherwise ceased to have effect, the opinion/confirmation will continue to apply until such time as Revenue has had an opportunity to review the application for its renewal or extension. This is appropriate as opinions/confirmations do no more than clarify Revenue’s interpretation and application of the law to particular facts and circumstances.
Where, on reviewing an opinion/confirmation on foot of an application for its renewal or extension, Revenue gives written notice of the withdrawal or amendment of the opinion/confirmation concerned, this notice will be stated to apply to transactions and chargeable periods to the extent that they are subsequent to such notice.
Reviews of applications
Revenue will complete reviews of applications and respond to taxpayers or their tax agents on a timely basis. Following the 30 June 2017 end-date for renewal or extension applications, an estimated date of response will be provided by Revenue to each applicant, taking account of the overall number of applications received and, as respects the particular renewal or extension application, the relative complexity of the issues involved.
4. What happens if evidence of an opinion/confirmation is not supplied and an application for its renewal or extension is not made by the required date of 30 June 2017?
In those circumstances an opinion/confirmation, which had not already ceased to have effect, cannot be relied on by the taxpayer from 1 January 2017. A taxpayer might decide not to make a renewal or extension application because, for example, the matter on which the opinion/confirmation has been provided was subsequently clarified in published guidance. In those circumstances, and having regard to published guidance on opinions/confirmations, seeking a renewal or extension of the opinion/confirmation would not be appropriate.
5. Has Revenue already commenced a review of opinions/confirmations that were issued more than 5 years ago?
Yes, Revenue has already commenced a review of opinions/confirmations that were issued more than 5 years ago and, as part of this process, has made contact with some taxpayers. Therefore, in the normal course, some taxpayers may have been contacted by Revenue about opinions/confirmations before making an application for the renewal or extension of an opinion/confirmation and before the 30 June 2017 deadline for making such an application. Where a taxpayer has been contacted by Revenue regarding a review of an opinion/confirmation that was issued prior to 1 January 2012, before 30 June 2017 and before the taxpayer has made any application for the renewal or extension of it, then unless in the course of correspondence with Revenue the taxpayer has made a written application to renew or extend the opinion/confirmation, the taxpayer should still follow the procedures set out in B.2 above if the taxpayer wishes to continue to rely on the opinion/confirmation after 1 January 2017.
6. Examples of types of opinions/confirmations that are within the scope of the review
All opinions/confirmations issued by Revenue before 1 January 2012 and which a taxpayer wishes to continue to rely on after 1 January 2017 are subject to review. The taxpayer must supply evidence of any such opinion/confirmation and make a renewal application no later than 30 June 2017.
Examples of the types of opinions/confirmations that a taxpayer might wish to continue to rely on include opinions/confirmations relating to:
- The existence or non-existence of a permanent establishment in the State;
- Profit attribution or transfer pricing methodology;
- Trading status; and
- Residence status.
The above list is only intended to illustrate some examples of opinions/confirmations that may have continuing relevance. There is no intention that it should read as an exhaustive list of opinions/confirmations that are within the scope of this review.
C. Exchange of information with other tax authorities
In accordance with EU and OECD initiatives on exchange of information on "Tax Rulings", any opinion/confirmation provided by Revenue, including a renewal or extension of an existing opinion/confirmation, may be subject to disclosure to other tax authorities. For information on the type of opinions/confirmation that may need to be exchanged under these provisions, please refer to: Tax and Duty Manual Part 35-00-01 (PDF, 333KB)
 Or, where applicable, the equivalent length of time in accounting periods of the taxpayer concerned.
 A taxpayer may no longer be relying on an opinion/confirmation because, for example, the facts and circumstances on which it was based no longer apply.
 An opinion/confirmation could cease to have effect because of the expiry of a time limit included in the opinion/confirmation without renewal of the opinion/confirmation; changes in the relevant facts and circumstances; or changes in relevant law and published practice.