Section 20 - Finance Act 2013

Here is the full - highly technical - text of Section 20 of the Finance Act 2013, which is intended to introduce a new mechanism for funding film production in Ireland by way of a tax credit scheme. It seems closely modeled on its UK equivalent although it is being brought in as amending legislation for the Section 481 regime already on the books.

Some notable points that bear further investigation and commentary include the 32% production funding delivery target (up from roughly 28%); regulations around spend, production company location, production and distribution company inter-relationships; and the regulations regarding compliance. Other issues for discussion will turn on whether the scheme will actually function as a 'credit' (rebate) fund or as a direct payment fund from Revenue because the companies utilising the scheme will mostly not have sufficient tax liabilities against which to claim the tax credit.

Apologies for any layout and typo issues - I'll correct them in due course.


Finance Bill 2013
Section 20 refocuses the delivery mechanism for film relief. Arising from the amendments provided for in this section, Film Relief will not be available to investors in qualifying films. Instead a payable tax credit of 32 per cent will be paid directly to a Producer Company. The tax credit will reduce the corporation tax of the qualifying period in respect of which the return filing date immediately precedes the application for a film certificate. Where the tax credit exceeds the tax due for the qualifying period (as reduced by the tax paid), the tax credit will be a payable credit. The section provides for the extension of the scheme to 31 December 2020 and is contingent on EU approval. Commencement is accordingly subject to a Ministerial Order.

Amendment of section 481 (relief for investment in films) of Principal Act.

20.—(1) The Principal Act is amended in section 481—
(a) in subsection (1) by deleting the definition of ‘‘allowable investor company’’,
(b) in subsection (1) by substituting the following for the definition of ‘‘film’’: ‘‘ ‘film’ means— (a) a film of a kind which is included within the categories of films eligible for certification by the Revenue Commissioners under subsection (2A), as specified in regulations made under subsection (2E), and (b) as respects every film, a film which is produced— (i) on a commercial basis with a view to the realisation of profit, and (ii) wholly or mainly for exhibition to the public in cinemas or by means of broadcast, but does not include a film made for exhibition as an advertising programme or as a commercial;’’,
(c) in subsection (1) by substituting the following for the definition of ‘‘the Minister’’: ‘‘ ‘the Minister’ means the Minister for Arts, Heritage and the Gaeltacht;’’,
(d) in subsection (1) by deleting the definition of ‘‘qualifying individual’’,
(e) in subsection (1) by substituting the following for the definition of ‘‘qualifying period’’: ‘‘ ‘qualifying period’, in relation to a film corporation tax credit specified in a film certificate, means— (a) the accounting period of the producer com pany, in respect of which the specified return date for the chargeable period, within the meaning of section 959A, immediately precedes the date the application referred to in subsection (2A)(a) was made, or (b) where the accounting period referred to in paragraph (a) is a period of less than 12 months, the period— (i) commencing on the date on which the most recently commenced accounting period, which commences on or before the date which is 12 months before the end of the accounting period referred to in paragraph (a) commences, and (ii) ending on the date the accounting period referred to in paragraph (a) ends, and references in subsection (3) to corporation tax and corporation tax paid shall be construed accordingly;’’,
(f) in subsection (1) by deleting the definition of ‘‘relevant deduction’’,
(g) in subsection (1) by deleting the definition of ‘‘relevant investment’’,
(h) in subsection (1) by deleting the definition of ‘‘specified relevant person’’, 20
(i) in subsection (1) by inserting the following definitions: ‘‘ ‘broadcast’ and ‘broadcaster’ have the meanings assigned to them by section 2 of the Broadcasting Act 2009; ‘film corporation tax credit’, in relation to a qualifying film, means an amount equal to 32 per cent of the lowest of— (a) the eligible expenditure amount, (b) 80 per cent of the total cost of production of the film, and  (c) €50,000,000; ‘producer company’, in relation to a film corporation tax credit specified in a film certificate, means a company that— (a) is resident in the State, or is resident in an EEA State other than the State and carries on business in the State through a branch or agency, (b) commencing not later than the time the qualifying period commences, carries on a trade 40 of producing films— (i) on a commercial basis with a view to the realisation of profit, and (ii) that are wholly or principally for exhibition to the public in cinemas or by means of broadcast,
(c) is not a company, or a company connected to a company— (i) that is a broadcaster, or (ii) in the case of— (I) a company, whose business consists wholly or mainly, or (II) a company connected to another company, where the aggregate of the activities carried on by the company and every company to which it is connected, consists wholly or mainly, of transmitting films on the internet, (d) holds all of the shares in the qualifying company, and (e) has delivered to the Collector-General, on or before the specified return date, a return, in accordance with section 959I, in respect of— (i) the accounting period referred to in paragraph (a) of the definition of ‘qualifying period’, or (ii) each accounting period ending in the qualifying period, referred to in paragraph (b) of that definition, as the case may be; ‘specified amount’ has the meaning given to it by subsection (3)(b); ‘specified relevant person’ means a person who is a director or secretary of the producer company at any time during the period commencing when the qualifying period commences and ending 12 months after the date the compliance report referred to in subparagraph (iii) of subsection (2C)(d)(iii) is provided to the Revenue Commissioners;’’,
(j) in subsection (2)— (i) in paragraph (a) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place, and (ii) by deleting paragraph (c),
(k) in subsection (2A) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place in paragraph (a),
(l) in subsection (2A) by substituting the following for paragraph (b): ‘‘(b) The Revenue Commissioners shall not issue a certificate under paragraph (a) if— (i) they have not been given authorisation to do so by the Minister under subsection (2)(a), (ii) the producer company, the qualifying company and each person who is either 5 the beneficial owner of, or able directly or indirectly to control, more than 15 percent of the ordinary share capital of the producer company or the qualifying company, as the case may be, is not in compliance with all the obligations imposed by the Tax Acts, the Capital Gains Tax Acts or the Value-Added Tax Consolidation Act 2010 in relation to— (I) the payments or remittances of taxes, interest or penalties required to be paid or remitted under those Acts, (II) the delivery of returns, and (III) requests to supply to an inspector accounts of, or other information 20 about, any business carried on, by the producer company, the qualifying company or person, as the case may be, or  iii) the eligible expenditure amount is less than €200,000.’’,
(m) in subsection (2A) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place in paragraphs (c), (e) and (f),
(n) in subsection (2A)(g) by substituting the following for subparagraph (i): ‘‘(i) in relation to the quantum of the specified amount, and the timing and manner of a payment of the specified amount,’’,
(o) in subsection (2A)(g) by substituting the following for subparagraph (iii): ‘‘(iii) in relation to the amount of the film corporation tax credit by which the producer company’s corporation tax is to be reduced,’’, 40
(p) in subsection (2A)(g) by inserting ‘‘(in this section referred to as the eligible expenditure amount)’’ after ‘‘film’’ where it first occurs in subparagraph (iv),
(q) in subsection (2A) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place in paragraph (h), 45
(r) in subsection (2B) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place,
(s) in subsection (2C) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place (other than in paragraphs (b) and (c)),
(t) in subsection (2C)(b) by inserting ‘‘or the qualifying company’’ after ‘‘company’’,
(u) in subsection (2C)(c)— (i) by inserting ‘‘the producer company,’’ before ‘‘the qualifying company’’ where it first occurs, (ii) by inserting ‘‘the producer company or’’ before ‘‘the qualifying company’’ where it last occurs, and (iii) by substituting ‘‘producer company or the qualifying company’’ for ‘‘company’’ in subparagraph (i),
(v) in subsection (2C) by deleting ‘‘and’’ before paragraph (e),
(w) in subsection (2C) by substituting the following for paragraph (e): ‘‘(e) if the company ceases to carry on the trade referred to in paragraph (b) of the definition of ‘‘producer company’’, before a time which is 12 months after the date the compliance  report referred to in subsection (2C)(d)(iii) is provided to the Revenue Commissioners,’’,
(x) in subsection (2C) by inserting the following after paragraph (e): ‘‘(f) if the company disposes of its shares in the qualifying company before a time which is 12 months after the date the compliance report referred to in subsection (2C)(d)(iii) is provided to the Revenue Commissioners, (g) unless the company— (i) enters into a contract with the qualifying company in relation to the production and distribution of the qualifying film, and (ii) provides an amount not less than the specified amount to the qualifying company, and (h) unless an amount not less than the eligible expenditure amount is expended by the qualifying company wholly and exclusively on the production of the qualifying film as specified in a condition in a film certificate, in accordance with subsection (2A)(g)(iv).’’,
(y) in subsection (2CA)(b) by substituting the following for subparagraph (i): ‘‘(i) the arrangements relate to the filming of part of a film in a territory other than a territory referred to in clause (I) or (II) of subsection (2C)(b)(i),’’,
(z) in subsection (2CA)(b) by substituting ‘‘the producer company’’ for ‘‘the qualifying company’’ in subparagraph (ii),
(aa) in subsection (2CA)(b) by substituting the following for subparagraph (iii): ‘‘(iii) the producer company demonstrates to the satisfaction of the Revenue Commissioners that it can provide, if requested, sufficient records to enable the Revenue Commissioners to verify, in the case of filming in a territory, the amount of each item of expenditure on the production of the qualifying film expended in the territory, whether expended by the producer company or by any other person,’’,
(ab) by substituting the following for subsection (2D): ‘‘(2D) Where the producer company or the qualifying company fails to comply with any of the provisions of this section or fails to fulfil any condition specified in a certificate issued to the producer company under paragraph (a) of subsection (2A), the Revenue Commissioners may, by notice in writing, revoke the certificate.’’,
(ac) in subsection (2E)— (i) by substituting ‘‘a producer company and a qualifying company’’ for ‘‘a qualifying company’’ in paragraph (d), (ii) by substituting ‘‘producer company’’ for ‘‘qualifying company’’ in each place in paragraphs (f) and (l), (iii) by deleting ‘‘and’’ in paragraph (m), and (iv) by substituting ‘‘film, and’’ for ‘‘film.’’ in paragraph (n),
(ad) in subsection (2E) by inserting the following after paragraph (n): ‘‘(o) governing when the specified amount may be paid by the Revenue Commissioners to the producer company.’’,
(ae) in subsection (2F) by substituting ‘‘producer company’’ for ‘‘qualifying company’’,
(af) by substituting the following for subsection (3): ‘‘(3) (a) Where the Revenue Commissioners have— (i) issued a film certificate to a producer company, in accordance with subsection (2A)(a), and (ii) specified an amount of a film corporation tax credit in the certificate, the corporation tax of the company for the qualifying period, shall, subject to subsection (2A)(g)(iii), be reduced by so much of an amount equal to the film corporation tax credit specified in the film certificate as does not exceed that corporation tax and where the qualifying period is a period referred to in paragraph (b) of the definition of ‘qualifying period’, the corporation tax of an earlier accounting period shall be reduced in priority to the corporation tax of a later accounting period. (b) Subject to subsection (3C), where the Revenue Commissioners have specified a film corporation tax credit in a film certificate and the amount of the credit exceeds the corporation tax of the qualifying period, as reduced by the corporation tax paid by the company in respect of that period but before any reduction under paragraph (a), the excess (in this section referred to as the ‘specified amount’) shall be paid to the producer company by the Revenue Commissioners. (c) The specified amount shall be paid by the Revenue Commissioners to the film producer company not later than the date specified in the film certificate issued to the company,  which shall not be earlier than the date set out in the regulations made under subsection (2E).’’,
(ag) by inserting the following after subsection (3): ‘‘(3A) (a) Any amount payable by the Revenue Commissioners to the company by virtue of subsection (3)(b) shall be deemed to be an overpayment of corporation tax, for the purposes only of section 960H(2). (b) Any claim in respect of a specified amount shall be deemed for the purposes of section 1077E to be a claim in connection with a credit and, for the purposes of determining an amount in accordance with section 1077E(11) or 1077E(12), a reference to an amount of tax that would have been payable for the relevant periods by the person concerned shall be read as if it were a reference to a specified amount. (c) Where the Revenue Commissioners have paid a specified amount to a producer company and it is subsequently found that all or part of the amount is not as authorised by this section (in this section referred to as the ‘unauthorised amount’), then— (i) the company, (ii) any director of the company, or (iii) any person referred to in subparagraph (ii) of paragraph (b) of subsection (2A), may be charged to tax under Case IV of Schedule D for the accounting period, or year of assessment, as the case may be, in respect of which the payment was made, in an amount equal to— (I) in the case of a company, 4 times, 10 and (II) in the case of an individual, one hundred forty-firsts, of so much of the specified amount as is not so authorised. (d) The circumstances in which an unauthorised amount arises shall include any circumstances where the amount was paid in accordance with paragraph (b) of subsection (3) and— (i) the Revenue Commissioners revoke a certificate issued under subsection (2A)(a), or (ii) the producer company or the qualifying company— (I) fails to satisfy or comply with any condition or obligation required by this section or regulations made under this section, (II) fails to satisfy or comply with any condition or obligation specified in a film certificate, including a condition to complete, deliver, exhibit or make available for exhibition the qualifying film by a time specified in a film certificate, or (III) at any time on or before the time referred to in subsection (2C)(e) fails to comply with any of the obligations referred to in subsection (2A)(b)(ii). (e) Where in accordance with paragraph (c) an inspector makes an assessment in respect of a specified amount, the amount so charged shall for the purposes of section 1080 be deemed to be tax due and payable and shall carry interest as determined in accordance with subsection (2)(c) of section 1080 as if a reference to the date when the tax became due and payable were a reference to the date the amount was paid by the Revenue Commissioners. (3B) (a) The amount which is provided by the producer company to the qualifying company in accordance with subparagraph (ii) of subsection (2C)(g) shall not— (i) be a sum which may be deducted in computing the profits or gains to be charged to tax under Case I of Schedule D and shall not otherwise reduce the income of the producer company, (ii) subject to subsection (3), reduce the corporation tax of the producer company, (iii) be provided in a manner which is wholly or partly for the purpose of, or in connection with, securing a tax advantage, or (iv) be income of the qualifying company for any tax purpose. (b) A failure by the qualifying company to repay any part of the amount referred to in paragraph (a) to the producer company shall not be a sum which may be deducted in computing the profits or gains of the producer company to be charged to tax under Case I of Schedule D and shall not otherwise reduce the income of the producer company. (c) Notwithstanding sections 411 and 616, the producer and the qualifying company shall be deemed not to be members of the same group of companies for the purposes of— (i) section 411, or (ii) except for the purposes of section 626, section 616. (d) A loss, for the purposes of section 546, shall not be treated as arising on the disposal by the producer company of shares in the qualifying company. (e) Section 626B shall be deemed not to apply to the disposal by the producer company of shares in the qualifying company. (f) For the purposes of section 538(2), the value of the shares held by the producer company in the qualifying company, shall not, at any time, be negligible. (3C) The Revenue Commissioners shall not pay a specified amount to a producer company in respect of a film certificate issued after 31 December 2020.’’, and
(ah) by deleting subsections (4) to (22).

(2) This section shall come into operation on such day or days as the Minister for Finance may by order or orders appoint and different days may be appointed for different purposes or different provisions.

Éamon de Buitléar - RIP

Éamon de Buitléar filming gannets on Sceillig Bheag c. 1978

Photo: from The Irish Wildlife Book, 1979.

The death has taken place in Wicklow of  Éamon de Buitléar, filmmaker, naturalist, musician, and eminent custodian of our heritage.

The expression 'independent filmmaker' has become a devalued brand these days, a sort of catch-all flag of convenience. When it first came into use it was as a declaration of intent by filmmakers to originate and create their own work. In Ireland, in the 1960s and 1970s, independent filmmakers were rarer than hens' teeth.

It's fair to say that most Irish filmmakers working independently in drama and documentary over those two decades have been given their due recognition. But some others - perhaps Paddy Carey, Gerrit van Gelderen, David Shaw Smith and Éamon de Buitléar among them - are still due greater acknowledgement.

They, and often their families alongside them, worked for pennies on very hard-got commissions from RTÉ and other semi-state organisations. They became expert in forms of filmmaking that no-one else was attempting in Ireland at the time. They were their own producers, directors, scriptwriters, cameramen, editors and narrators. They may even have processed their own footage from time to time. They were very often frustrated by funding issues, they were frugal by necessity, and they were unbelievably patient.

If it is a filmmaker's job to convey something to audiences through their work then Éamon de Buitléar did something enormously important - he conveyed his own love for and curiosity about the Irish natural world to at least three generations of Irish television viewers, this writer included.

A couple of years ago I came across a dead pine marten at the side of the road near the house here and was reminded immediately of Éamon de Buitléar's work. I had heard him many years previously talking about the difficulty of capturing footage of pine martens in the wild. At the time they were one of our rarest mammals and there were very few left in the country.

Back then one of the few places they might be filmed was in the Burren in County Clare. De Buitléar had spent weeks hunkered down in hazel scrub in order to film the elusive creatures, almost to the point of despair it seemed, before eventually getting some usable material.

I heard subsequently from relatives in the area that a wildlife film crew had been looking for pine martens but that they hadn't told them that a family of the animals were living in their old cottage, because they intended to do it up!

The anecdote illustrates the inevitable tensions between conservation and development, and the greater historical context of human interaction with the natural world in Ireland which Éamon de Buitléar did so much to bring to public consciousness.

The valediction from 'An tOileánach' is rarely as deserved as it is for Éamon de Buitléar, truly ní bheidh a leithéid arís ann.

A serious question about 3D

This post is different to others on this blog. Although it does relate to a cinema-going experience in Ireland it might have occurred anywhere in the world.

I say might because I am writing about an incident which took place in 2011, in Ireland, which may, repeat, may be connected to the cinema visit that immediately preceded it.

In short, some 30 minutes after attending a public screening of a mainstream film in 3D the person with whom I watched the film experienced a full-blown seizure. This person had never previously experienced a seizure.

I have waited more than a year to write about it in order that other possible causes or correlative factors could be ruled out. This person has not experienced a seizure since, nor have they gone to a 3D screening in the intervening period.

On being brought immediately by ambulance to hospital, with the usual A&E examination, bloodwork and tests being done, no immediate cause was found for the seizure. On subsequent consultant referral and MRI scanning no underlying cause was found for the seizure. The cause of the seizure is, as yet, unexplained.

I will add, in case it's relevant, that the person ordinarily wears glasses with strong corrective lenses. The 3D glasses supplied at the screening were manufactured by Omnex Pro Film Ltd.

Since the connection between the seizure and the screening remains unproven I am not going to name either the film or the cinema - although that might serve to clarify the particular 3D process(es) experienced at the time.

So, to the question... Is there any evidence linking abnormal brain activity, up to and including seizure, with 3D cinema viewing, in even a tiny number of instances?

Film Board capital funding, 2013

In looking for the total allocation for 2013 (capital + current funding) for the IFB I missed the table setting out the Department's capital provision for the year ahead.

The amount estimated for the IFB for next year is €11.898m, down from €13.150m this year. That's a reduction of approximately 10% in funding for development, production, short film schemes and training.

An additional €500,000 in capital is expected to come from recoupment but this is an educated guess rather than definitive. The same amount was expected in 2012 but the amount given as the outturn for the year is actually €370,000. This represents one year's recoupment on some €200m of funding.

The budget allocation for current spending in 2013 may not have been published yet but I believe that the agency's staffing changes and cuts will probably accommodate any reduction on the €2.54m made available in 2012. However, there is a danger that as the capital provision comes down the current budget may begin to appear disproportionate - a widespread issue across the public service as programmes are cut and administration begins to look top heavy.

There has been a 41%  decrease in the IFB's capital funding since 2008:
2013 €11.89million
2012 €13.15million
2011 €16.00million
2010 €16.50million
2009 €18.81million
2008 €20.00million
Note: there may have been additonal supplementary capital made available in 2008 and 2009, possibly allocated under the 'International Production' heading.

A new dispensation for the industry?

Compulsory reading. On a quick overview it seems as if a lot of the spin around the tax break has been de-bunked, at last.

Economic Impact Assessment of Section 481 Film Relief
December 2012, Dept. of Finance.

"However maintaining Section 481 in its current format does not appear to be sustainable. The scheme as currently operated fails a cost benefit analysis, has a high level of inefficiency in terms of leakage and is inequitable due to its reliance on high income individuals which itself is inconsistent with Government commitments to ‘cap or abolish tax shelters which benefit very high income earners’."

And on the proposed introduction of a tax credit model (with a Revenue-policed early pay-out for producers)...

"If such a model were in place in 2011, it would have resulted in a 32% exchequer saving. Based on the same level of qualifying expenditure this would have reduced the exchequer cost from €46.5m to €32m as the rate of relief would have been at 28% (in line with the producer benefit) rather than 41% (at the investor’s marginal income tax rate). This saving would also have improved the outcome of the cost benefit analysis."

And here's the question floating like a pink elephant in the room - against what taxes will production companies be able to raise levels of funding in 2016 equivalent to those now pouring from the Section 481 tap?


PS - still no official word on the IFB's capital and current budget for 2013, despite press releases from the Minister and IFB Chair welcoming the moves on Section 481. The Department's budget for the total Arts, Culture & Film section is €107.24m (-5% on 2012) of which it has announced that €60.7m (-3% on 2012) is for the Arts Council. "This is the maximum possible funding that I can allocate to the Arts Council for next year, and is below the average reduction that I have had to apply across the board in my Department."