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Recent Decisions On International Taxation Porus F Kaka Advocate. Case Study 1. Kinsella vs Revenue Commissioners (2007) IEHC 250 Irish High Court Commission Division. In 2002 Mr Shane Ryan owned substantial share holding in Ryan Holdings PLC

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Presentation Transcript
slide1
Recent Decisions

On

International Taxation

Porus F Kaka

Advocate

case study 1
Case Study 1

Kinsella vs Revenue Commissioners

(2007) IEHC 250

Irish High Court Commission Division

slide3
In 2002 Mr Shane Ryan owned substantial share holding in Ryan Holdings PLC
  • March 2002 Plaintiff & Mr Ryan contacted Tax Experts to advise on opportunities to avoid tax on disposal of shareholding
  • 16-07-2002 Plantiff marries Mr Ryan
slide4
September 2002 on request of Tax Adviser, Revenue Commissioner replied that Irish capital gains tax covered under Italy/Ireland DTA
  • December 2002 Revenue Commissioner’s reply on definition of “Day” under DTA
slide5
13-06-2003 Plaintiff obtained a Permesso di soggiorno
  • 24-06-2003 she let a tiny apartment and was registered on the anagrafe
  • 25-09-2003 purchased shares in Ryan Air Holdings from husband in excess of 18 million euros. No monies changed hand
slide6
No CGT as transaction between spouses
  • On 10-10-2003 sold shares to third party for a sum in excess of 19 million euros
  • Return filed claiming Plaintiff’s residence in Italy and no CGT in Ireland. Return accompanied by an “expression of doubt”
slide7
Questions before the Court
  • Is CGT Tax on capital or Tax on income ?
  • Is it identical or substantially similar to Income Tax and therefore covered by the DTA ?
  • Definition of “Day” in DTA ought to have its meaning as per Irish Law or Italian Law ?
slide8
HELD
  • (a) Taking guidance from the OECD model

convention – CGT is a tax on gains or profits

rather than on capital wealth

(b) It is substantially similar to the taxes existing

and mentioned in the convention

  • (a) In accordance with recent 3 (2) definition of Day

has to be as per Ireland’s Domestic Law

(b) Court refuses to adjudicate upon other issues