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Ireland as a Location for International Holding Companies

25 March 2011

Leading global companies such as Ingersoll Rand, WPP, Accenture, Warner Chilcott, Shire and Experian have established their corporate holding companies in Ireland. They are joined by private groups, private equity funds, sovereign wealth funds, alternative investment funds and family offices that have all chosen Ireland for its benefits as a location for establishing a holding company. Ireland can also be an attractive jurisdiction for investment into Chinese companies.

Ireland offers a range of benefits, including a stable legal system, access to financial markets and the benefits of OECD and European Union membership. The Irish tax regime further supports Ireland's status by providing an attractive platform for shareholders and corporates.

Taxation of an Irish Holding Company

Capital Gains

Capital gains realised by an Irish resident company on disposals of qualifying subsidiaries are exempt from Irish tax.

The subsidiary must be resident in an EU or tax treaty partner country. Ireland has tax treaties with over 60 countries including China, Japan, the Republic of Korea, Russia, the US, the UK and Canada (see the Appendix for complete list).

The Irish holding company must hold at least 5% of the subsidiary for at least 12 months and pass a trading test. The trading test is widely defined. The exemption is available to a disposal of a single trading subsidiary but also extends to disposals of non-trading subsidiaries which form part of a wider trading group. The holding period requirement is also relatively flexible and facilitates part disposals.

Dividends

Dividends received by an Irish holding company from another Irish resident company are exempt from Irish corporate tax.

Ireland has a 12.5% rate of corporation tax which applies to:

(a) dividends from other EU or treaty countries which are sourced from trading activities; and

(b) dividends from foreign portfolio companies (i.e. less than a 5% interest).

A 25% rate applies to all other foreign dividends, however it is important to highlight that the availability of a broad system of credits (together with onshore pooling) can reduce or eliminate any Irish tax. Treaty credit relief will apply in many instances. There is also unilateral Irish credit relief in respect of other countries provided a 5% shareholding relationship exists. Ireland's credit pooling arrangements allows excess credits arising in respect of one dividend stream to be applied to other lower taxed streams, subject to certain restrictions. In practice, as many jurisdictions have corporate tax rates in excess of the Irish rate, often the result is that no additional Irish tax is payable on foreign dividends.

Financing – Tax Deductions for Interest Payments

Ireland has limited thin capitalisation rules and therefore an Irish holding company may be financed principally by debt. A tax deduction is potentially available for interest on funds used to acquire ordinary shares in a trading company. A deduction may also be available for funds used to lend to trading subsidiaries provided they are used wholly and exclusively for the purpose of the subsidiary's trade, or the trade of a connected person.

Extracting Profits from an Irish Holding Company

There is no Irish capital gains tax on disposals of shares in an Irish company by a non-Irish resident, except where the Irish company derives the greater part of its value from Irish land or Irish mineral rights.

Although Ireland levies 20% dividend withholding tax, there are a significant number of exemptions. No withholding tax should arise on payments to residents of other EU or treaty countries. Additionally payments to companies which are not resident in the EU or a treaty country can still be made free of Irish withholding tax provided that shareholder company is ultimately controlled by persons who are so resident. For example, dividend payments to a Cayman Islands company which is controlled by a EU or treaty resident investor should be free of withholding tax.

Certainty and Clarity

Ireland's common law legal system (based on UK law) and tax regime continues to offer clarity and certainty to investors. A long established EU jurisdiction, Ireland was rated in 2011 as the easiest country in Europe in which to deal with business taxes for the fourth year running.

Tax Treaties

In addition to the treaty partner countries listed in the Appendix, Ireland is currently in negotiation with a number of other countries and has a policy to keep expanding its treaty network. Coupled with the ability to utilise various EU directives on cross-border payments, foreign withholding tax on royalty, interest and dividend payments to an Irish company can be eliminated or reduced.

Irish Section 110 Companies

In certain circumstances, an Irish securitisation vehicle (a section 110 company) could be used as a company to hold share investments. Such companies are generally corporation tax neutral provided they are appropriately structured.

Accessing Public Markets with an Irish Resident Company Irish resident holding companies are increasingly common on international stock exchanges, particularly in the US. Shares in Irish incorporated companies can be traded through CREST and held in American Depositary Receipt (ADR) systems. The transfer of ADRs issued in respect of Irish incorporated companies and traded on a US or Canadian recognised stock exchange are not subject to Irish stamp duty. Alternatively, for listings on other exchanges, a non-Irish incorporated company can be considered. In particular recent redomiciliations of UK listed international companies, such as Experian and Shire, have involved Irish resident, but Jersey incorporated companies. Although the company retains the benefit of the Irish holding company regime, the transfer of such shares should not be subject to Irish stamp duty.

Key Tax Treaty Provisions

Under Ireland's tax treaties, local withholding tax on dividend payments to an Irish company is either reduced to a favourable rate or excluded entirely, often depending on the shareholding or voting power percentages the recipient holds in the local company. Please see the Appendix for a summary guide of the maximum source country withholding rates for dividends, interest and royalty payments. The treaties can also relieve an Irish resident company from local capital gains tax on sale of shares in the local company (often, other than a company which consists principally of local land). There are often no minimum holding periods or shareholding required in order to benefit from this exemption.

Maples – Global Knowledge, Irish Expertise

Maples and Calder is an international law firm, providing a full range of corporate and finance law advisory services. We advise leading domestic and international corporates and financial institutions on the laws of Ireland, the Cayman Islands and the British Virgin Islands. The Maples Group comprises over 700 people worldwide, 175 of whom are based in our Dublin office. We combine an extensive knowledge and experience of Irish law with the in-depth strength of a global law firm.

MaplesFS

Our affiliate business MaplesFS is an independent global provider of specialised fiduciary, accounting and administration services. MaplesFS offers a wide range of expertise in accounting, company management, corporate, fiduciary, trust and fund administration. This close working relationship offers clients the maximum convenience and efficiency in establishing and administering companies, funds and investments.

If you require any further advice or assistance please speak to your usual Maples contact.


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