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Amendment of section 481A of Principal Act (relief for investment in digital games)
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46. (1) Section 481A of the Principal Act is amended—
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(a) in subsection (1)—
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(i) by the substitution of the following definition for the definition of “date of completion”:
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“ ‘date of completion’ means—
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(a) in the case of a qualifying digital game in respect of which a post-release extension of an interim certificate has not been granted, the earlier of—
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(i) the date on which the game is first made available to the public, or
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(ii) where the game is commissioned by an undertaking other than the digital games development company, the date on which the game is first provided by the digital games development company to the undertaking,
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and
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(b) in the case of a qualifying digital game in respect of which a post release extension of an interim certificate has been granted, the earlier of—
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(i) the last date on which post-release digital content is made available to the public before an application for a final certificate is made by the digital games development company, or
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(ii) where the game is commissioned by an undertaking other than the digital games development company, the last date on which post-release digital content is provided by the digital games development company to the undertaking before an application for a final certificate is made by the digital games development company,
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and ‘completed’ shall be construed accordingly;”,
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(ii) in the definition of “eligible expenditure”, by the substitution of “an EEA state” for “the EEA”,
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(iii) by the substitution of the following definition for the definition of “qualifying expenditure”:
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“ ‘qualifying expenditure’, in relation to an interim digital game or a qualifying digital game, is expenditure (the types of which are specified in regulations made under subsection (17)) incurred by a digital games development company on the design, production and testing of a digital game, being expenditure which for corporation tax purposes is allowable as a deduction in computing, or against, the income of the trade referred to in paragraph (b) of the definition, in this subsection, of ‘digital games development company’ which is chargeable under Case I of Schedule D;”,
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and
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(iv) by the insertion of the following definitions:
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“ ‘date of release’, in relation to an interim digital game, means the date on which the game is first made available to the public and ‘released’ shall be construed accordingly;
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‘EEA Agreement’ means the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as adjusted by all subsequent amendments to that Agreement;
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‘EEA state’ means a state, other than the State, which is a contracting party to the EEA Agreement;
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‘post-release digital content’, in relation to a qualifying digital game, means digital content which is developed subsequent to the date of release of the game and which is in addition to, and for incorporation into, that game;
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‘post-release extension of an interim certificate’ shall be construed in accordance with subsection (8A);
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‘post-release interim certificate extension period’ has the meaning given to it by subsection (8A);”,
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(b) by the substitution of the following subsection for subsection (2):
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“(2) Subject to the provisions of this section, a digital games development company that intends to make a claim for an interim digital games corporation tax credit or a digital games corporation tax credit, as the case may be, under this section—
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(a) shall, in relation to a digital game that is to be developed by the company, make an application to the Minister for the issue by the Minister of an interim certificate,
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(b) may, in relation to a digital game that is developed by the company and released and in respect of which an interim certificate has been issued under subsection (4), make an application to the Minister for the grant by the Minister of a post-release extension of an interim certificate, and
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(c) shall, in relation to a digital game that has been developed and completed by the company and in respect of which an interim certificate has been issued under subsection (4), make an application to the Minister for the issue of a final certificate.”,
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(c) in subsection (3), by the substitution of “an interim certificate, a post-release extension of an interim certificate or a final certificate under subsection (2)” for “an interim or final certificate under subsection (2)”,
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(d) in subsection (5)—
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(i) in paragraph (a), by the deletion of “and”,
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(ii) in paragraph (b)—
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(I) by the substitution of “the State or an EEA state” for “Ireland or another EEA state” in each place where it occurs, and
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(II) in subparagraph (v), by the substitution of “minimising climate change, and” for “minimising climate change.”,
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and
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(iii) by the insertion of the following paragraph after paragraph (b):
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“(c) the timing of the application for the interim certificate by reference to the date on which the digital games development company first incurs qualifying expenditure on the development of the digital game.”,
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(e) by the substitution of the following subsection for subsection (8):
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“(8) On the expiry of an interim certificate, the interim certificate shall cease to have effect and is treated as never having had effect unless—
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(a) an application has been made before the expiry date to the Minister under paragraph (b) or (c) of subsection (2), as the case may be, and
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(b) on the determination of the application—
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(i) in the case of an application under subsection (2)(b), a post release extension of an interim certificate is granted by the Minister, or
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(ii) in the case of an application under subsection (2)(c), a final certificate is issued by the Minister.”,
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(f) by the insertion of the following subsections after subsection (8):
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“(8A) (a) The Minister may, following an application by a digital games development company under subsection (2)(b), subject to subsection (8B) and in accordance with regulations made under subsection (17), grant to the digital games development company a post-release extension of an interim certificate for such period as the Minister may specify (in this section referred to as the ‘post-release interim certificate extension period’).
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(b) Where the Minister grants a post-release extension of an interim certificate under paragraph (a)—
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(i) the interim certificate as issued under subsection (4) is extended accordingly,
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(ii) the digital game concerned is to be treated as if it were an interim digital game for the purposes of this section, and
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(iii) the conditions specified in the interim certificate concerned—
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(I) continue to apply, and
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(II) may be amended, revoked or added to by the Minister.
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(8B) In considering whether to grant a post-release extension of an interim certificate, the Minister shall have regard to the following criteria—
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(a) whether the digital game as released is an eligible digital game,
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(b) the contribution which the digital game makes to the promotion and expression of Irish or European culture, by reference to the matters referred to in subparagraphs (i) to (v) of subsection (5)(b), and
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(c) whether the conditions specified in the interim certificate have, at the date of release of the digital game, been satisfied.
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(8C) On the expiry of a post-release interim certificate extension period, the interim certificate shall cease to have effect and is treated as never having had effect unless—
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(a) an application has been made to the Minister under subsection (2)(c) before the date on which the post-release interim certificate extension period expires, and
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(b) on the determination of that application, a final certificate is issued by the Minister.
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(8D) For the purposes of subsection (8A)(b)(iii)(II), subsection (7) shall apply during the post-release interim certificate extension period as it did before the post-release interim certificate extension period.”,
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(g) in subsection (9), by the substitution of “subsection (2)(c)” for “subsection (2)(b)”,
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(h) in subsection (10), by the substitution of the following paragraph for paragraph (c):
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“(c) whether the conditions specified in the interim certificate issued in respect of the interim digital game have been satisfied.”,
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(i) in subsection (13)—
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(i) in paragraph (b), by the substitution of “the interim certificate or, where a post release extension of an interim certificate has been granted, the post release interim certificate extension period, has expired” for “the interim certificate has expired”, and
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(ii) in paragraph (g), by the deletion of “other than the State”,
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(j) in subsection (14A)(c), by the substitution of “section 481, or” for “section 481, and”,
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(k) in subsection (15)(c), by the deletion of “the Revenue Commissioners may”,
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(l) in subsection (16)—
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(i) in paragraph (a)(i)(I), by the substitution of “the State or an EEA state” for “an EEA state”,
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(ii) by the insertion of the following paragraph after paragraph (b):
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“(ba) in relation to a claim under subsection (19) as respects an interim digital game that is released, where the company fails to provide, when requested to do so by the Revenue Commissioners, for the purposes of verifying compliance with the provisions governing the relief or with any condition specified in a certificate issued by the Minister under subsection (4), a copy of a released digital game, in such format and manner as is required to be provided to the Minister under paragraph (d)(ii) as respects a completed digital game,”,
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and
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(iii) by the substitution of the following paragraph for paragraph (e):
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“(e) unless—
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(i) the company makes a claim under subsection (20) and has available, prior to making that claim, a compliance report, in such format and manner as is specified in the regulations made under subsection (17), which provides proof that—
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(I) the provisions of this section in so far as they apply in relation to the company have been met,
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(II) any conditions attaching to the interim certificate issued to the company in relation to the interim digital game have been fulfilled, and
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(III) any conditions attaching to the final certificate issued to the company in relation to the qualifying digital game have been fulfilled,
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or
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(ii) the requirements of subparagraphs (i) to (iii) of subsection (28A)(c) are satisfied in respect of the company,”,
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(m) in subsection (17)—
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(i) in paragraph (a), by the substitution of “interim certification, post-release extension of an interim certificate and final certification” for “interim certification or final certification”, and
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(ii) by the insertion of the following paragraphs after paragraph (b):
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“(ba) specifying, in relation to an application for a post-release extension of an interim certificate, the time within which, and the format, number of copies and manner in which, a released digital game shall be provided to the Minister,
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(bb) specifying, in relation to an application for a post-release extension of an interim certificate, the time within which a digital games development company shall notify the Minister of the date of release of a released digital game,
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(bc) specifying the time within which, and the format and manner in which, the confirmation referred to in subsection (28A)(c)(i) shall be sought and the information and documents to be provided to the Minister,”,
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and
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(iii) in paragraph (g), by the substitution of “in accordance with subsection (16)(e)(i) or (28A)(c)(ii)” for “in accordance with subsection (16)(e)”,
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(n) in subsection (19)(b), by the substitution of “the interim certificate or the post release interim certificate extension period, as the case may be, has not expired” for “the interim certificate has not expired”,
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(o) in subsection (26)(a), by the substitution of “in respect of which an amount was paid or offset under subsection (22)” for “in respect of which the payment was made”,
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(p) by the insertion of the following subsection after subsection (28):
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“(28A) (a) This subsection applies to a claim for the interim digital games corporation tax credit where—
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(i) the amount was claimed under subsection (19), or paid or offset under subsection (22A), and
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(ii) the interim certificate is subsequently treated under subsection (8) or (8C), as the case may be, as ceasing to have effect and never having had effect.
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(b) Subject to paragraph (c), where this subsection applies, any amount that is to be charged to tax in accordance with subsection (26) may be so charged within 4 years of the end of the accounting period in which the interim certificate is first treated under subsection (8) or (8C), as the case may be, as ceasing to have effect and never having had effect at any time.
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(c) Where the interim certificate is treated under subsection (8C) as never having had effect, then notwithstanding the generality of subsection (26), the amount that is to be charged to tax in accordance with that subsection shall, subject to paragraph (d), be the amount of the interim digital games corporation tax credit that was claimed under subsection (19), or paid or offset under subsection (22A), as the case may be, in respect of expenditure incurred on the development of the interim digital game after the date of release provided that—
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(i) the Minister confirms that a final certificate would have been issued to the digital games development company in accordance with subsection (9) if, when the company made the application to the Minister for a post-release extension of an interim certificate under subsection (2)(b), the company had, instead, made an application to the Minister for a final certificate under subsection (2)(c),
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(ii) the digital games development company has available a compliance report, in such format and manner as is specified in the regulations made under subsection (17), in respect of any amount of the interim digital games corporation tax credit claimed under subsection (19), or paid or offset under subsection (22A), as the case may be, to the extent that such amount is in respect of the development of the game prior to the date of release, which provides proof of the matters set out in clauses (I) and (II) of subsection (16)(e)(i), and
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(iii) as respects the amount of the interim digital games corporation tax credit claimed under subsection (19), the qualifying expenditure incurred by the company on the development of the released game is not less than €100,000.
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(d) Nothing in paragraph (c) shall prevent the charging to tax of an amount in accordance with subsection (26) equal to so much of the amount of the interim digital games corporation tax credit that was claimed under subsection (19), or paid or offset under subsection (22A), as the case may be, in respect of expenditure incurred on the development of the interim digital game prior to the date of release as is not as authorised by this section.”,
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(q) by the substitution of the following subsection for subsection (29):
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“(29) Notwithstanding section 851A, where a digital games development company obtains relief under this section, the Revenue Commissioners may disclose the following taxpayer information in accordance with State aid transparency requirements:
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(a) the name of the company;
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(b) the name of the digital game;
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(c) the number of the certificate of incorporation of the company;
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(d) in respect of the principal activity carried on by the company, the NACE classification code, as determined in accordance with Regulation (EC) No. 1893/2006 of the European Parliament and of the Council of 20 December 200615
as amended by Regulation (EU) 2019/1243 of the European Parliament and of the Council of 20 June 201916
and Commission Delegated Regulation (EU) 2023/137 of 10 October 202217
;
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(e) the amount of interim digital games corporation tax credit or digital games corporation tax credit, as the case may be, granted, by reference to ranges set out in page 10, paragraph 52(7) of the Communication from the Commission (2013/C 332/01)18
, inserted by Communication from the Commission (2014/C 198/02)19
;
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(f) whether the company is—
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(i) a category of enterprise referred to in Article 2.1 of Annex 1 to Commission Regulation (EU) No. 651/2014 of 17 June 201420
, or
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(ii) a category of enterprise which is larger than the categories of enterprise referred to in subparagraph (i);
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(g) the territorial unit, within the meaning of the NUTS Level 2 classification specified in Annex 1 to Regulation (EC) No. 1059/2003 of the European Parliament and of the Council of 26 May 200321
as amended by Regulation (EC) No. 1888/2005 of the European Parliament and of the Council of 26 October 200522
, Commission Regulation (EC) No. 105/2007 of 1 February 200723
, Regulation (EC) No. 176/2008 of the European Parliament and of the Council of 20 February 200824
, Regulation (EC) No. 1137/2008 of the European Parliament and of the Council of 22 October 200825
, Commission Regulation (EU) No. 31/2011 of 17 January 201126
, Council Regulation (EU) No. 517/2013 of 13 May 201327
, Commission Regulation (EU) No. 1319/2013 of 9 December 201328
, Commission Regulation (EU) No. 868/2014 of 8 August 201429
, Commission Regulation (EU) No. 2016/2066 of 21 November 201630
, Regulation (EU) 2017/2391 of the European Parliament and of the Council of 12 December 201731
, Commission Delegated Regulation 2019/1755 of 8 August 201932
, and Commission Delegated Regulation (EU) 2023/674 of 26 December 202233
in which the company is located;
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(h) the date on which the interim digital games corporation tax credit or digital games corporation tax credit, as the case may be, is granted.”,
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and
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(r) in subsection (31), by the substitution of “31 December 2031” for “31 December 2025”.
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(2) (a) (i) The provisions of subsection (1) referred to in subparagraph (ii) shall apply to an application made to the Minister for Culture, Communications and Sport for the grant by that Minister of a post-release extension of an interim certificate, where such application is made on or after the date of the coming into operation of the provisions referred to in subparagraphs (i) to (xiv) of paragraph (c), in respect of—
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(I) an extant interim certificate issued in respect of a digital game before the coming into operation of the provisions referred to in subparagraphs (i) to (xiv) of paragraph (c) and in respect of which digital game, on the date on which the application for the grant of a post-release extension of an interim certificate is made, a final certificate has not issued, and
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(II) an interim certificate issued on or after the date on which the provisions referred to in subparagraphs (i) to (xiv) of paragraph (c) come into operation.
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(ii) The provisions of subsection (1) referred to in subparagraph (i) are as follows:
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(I) subparagraph (i) of paragraph (a),
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(II) subparagraph (iv) (in so far as that subparagraph inserts the definitions of “date of release”, “post-release digital content”, “post-release extension of an interim certificate” and “post-release interim certificate extension period” in section 481A(1) of the Principal Act) of paragraph (a),
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(III) paragraph (b) (in so far as that paragraph substitutes subsection (2)(b) of section 481A of the Principal Act),
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(IV) paragraph (c),
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(V) paragraph (e),
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(VI) paragraph (f),
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(VII) subparagraph (i) of paragraph (m), and
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(VIII) subparagraph (ii) (in so far as that subparagraph inserts paragraphs (ba) and (bb) in section 481A(17) of the Principal Act) of paragraph (m).
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(b) The following provisions of subsection (1) shall apply as respects digital games the development of which begins on or after the date on which those provisions come into operation:
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(i) paragraph (b) (in so far as that paragraph substitutes paragraphs (a) and (c) of section 481A(2) of the Principal Act),
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(ii) subparagraphs (i), (ii)(II) and (iii) of paragraph (d), and
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(iii) paragraph (h).
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(c) The following provisions of subsection (1) 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:
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(i) subparagraph (i) of paragraph (a),
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(ii) subparagraph (iv) (in so far as that subparagraph inserts the definitions of “date of release”, “post-release digital content”, “post-release extension of an interim certificate” and “post-release interim certificate extension period” in section 481A(1) of the Principal Act) of paragraph (a),
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(iii) paragraph (b),
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(iv) paragraph (c),
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(v) subparagraphs (i), (ii)(II) and (iii) of paragraph (d),
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(vi) paragraph (e),
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(vii) paragraph (f),
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(viii) paragraph (g),
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(ix) paragraph (h),
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(x) subparagraph (i) of paragraph (i),
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(xi) subparagraphs (ii) and (iii) of paragraph (l),
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(xii) paragraph (m),
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(xiii) paragraph (n),
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(xiv) paragraph (p), and
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(xv) paragraph (r).
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(3) Paragraphs (a)(iii) and (j) of subsection (1) shall apply as respects claims for the interim digital games corporation tax credit and the digital games corporation tax credit in accordance with section 481A of the Principal Act made on and from the date of the passing of this Act.
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15 OJ No. L393, 30.12.2006, p.1
16 OJ No. L198, 25.7.2019, p.241
17 OJ No. L19, 20.1.2023, p.5
18 OJ No. C332, 15.11.2013, p.1
19 OJ No. C198, 27.6.2014, p.30
20 OJ No. L187, 26.6.2014, p.70
21 OJ No. L154, 21.6.2003, p.1
22 OJ No. L309, 25.11.2005, p.1
23 OJ No. L39, 10.2.2007, p.1
24 OJ No. L61, 5.3.2008, p.1
25 OJ No. L311, 21.11.2008, p.1
26 OJ No. L13, 18.1.2011, p.3
27 OJ No. L158, 10.6.2013, p.1
28 OJ No. L342, 18.12.2013, p.1
29 OJ No. L241, 13.8.2014, p.1
30 OJ No. L322, 29.11.2016, p.1
31 OJ No. L350, 29.12.2017, p.1
32 OJ No. L270, 24.10.2019, p.1
33 OJ No. L87, 24.3.2023, p.1 |
