Tax Appeals Commission Determinations – April 2026
This month, we review a determination concerning the residential development stamp duty refund scheme and the strict application of statutory time limits, a determination concerning the scope of the flat‑rate farmer VAT refund scheme and the distinction between building works and equipment, and a determination concerning the computation of capital gains on disposal of an investment property, the evidential burden for deductions and losses, and the treatment of loan note investments.
38TACD2026 – Stamp Duty Refund: 30‑Month Construction Deadline
This appeal concerned the refusal of a €7,699 stamp duty repayment claimed under section 83D SDCA 1999 in respect of land purchased for residential development. The Appellant acquired the site on 24 June 2021 and paid stamp duty of €10,572 at the non‑residential rate. Construction of a dwelling commenced on 25 January 2024, and a repayment claim was submitted in June 2025 via ROS.
The Appellant contended that the delay in commencing construction arose due to a combination of personal, financial and health difficulties, as well as disruption caused by the Covid‑19 pandemic and increased construction costs. The Appellant also experienced difficulties submitting the claim through the eRepayments system and initially attempted to provide documentation in hard copy. It was argued that these factors should be taken into account and that the delay—approximately one month beyond the deadline—should not prevent the repayment.
Revenue submitted that section 83D(3)(a) clearly requires construction to commence within 30 months of the date of execution of the instrument. In this case, the relevant deadline was 24 December 2023, and construction commenced on 25 January 2024. Revenue emphasised that the legislation provides only limited exceptions to this time limit, namely where delays arise from planning appeals or court orders halting construction, neither of which applied. While Revenue acknowledged that an error had initially been made in correspondence by referring to the general four‑year time limit under section 159A, it clarified that the claim was in fact refused due to failure to meet the 30‑month condition.
The Commissioner found that the statutory requirement in section 83D(3)(a) was not satisfied, as construction commenced outside the 30‑month period. The Commissioner also noted that the legislation provides no discretion to extend this time limit based on personal hardship, Covid‑19 delays, or other extenuating circumstances. While acknowledging the Appellant’s difficulties and the relatively short delay, the Commissioner confirmed that the statutory conditions must be applied strictly.
The Commissioner further held that the Respondent’s earlier error in citing the incorrect legislative provision did not affect the correctness of the underlying decision, as the refusal was properly based on the failure to meet the statutory deadline. The Commissioner reiterated that the role of the Appeal Commissioners is confined to applying the law as enacted and does not extend to granting relief on equitable grounds.
The appeal was dismissed and the decision to refuse the stamp duty repayment was upheld.
37TACD2026 – VAT Refund: PTO Generator and “Construction” Test
This appeal concerned the refusal of a VAT refund of €972.36 claimed by a flat‑rate farmer in respect of the purchase and installation of a PTO (power take‑off) generator used to provide backup electricity to a dairy building. The Appellant, a dairy farming company not registered for VAT, contended that the generator constituted fixed equipment and that the VAT incurred qualified for repayment under the Value‑Added Tax (Refund of Tax) (Flat‑rate Farmers) Order 2012.
The Appellant argued that the generator was permanently installed, being bolted to the concrete floor and connected for operational use during power outages, and therefore formed part of the building or structure. It submitted that this brought the expenditure within the category of outlay relating to the “construction, extension, alteration or reconstruction” of a building used for farming.
Revenue rejected the claim on the basis that the expenditure related to the acquisition of equipment rather than to qualifying building works. It submitted that the statutory scheme is limited to clearly defined categories of expenditure and does not extend to machinery, even where such machinery is installed within a building.
The Commissioner applied established principles of statutory interpretation, noting in particular that reliefs and exemptions must be interpreted strictly and must fall clearly within the wording of the provision. The relevant question was whether the VAT incurred related to building works or instead to the purchase of equipment. The Commissioner found that the legislative terms “construction”, “extension”, “alteration” and “reconstruction” clearly refer to works carried out on a building itself, rather than to the installation of machinery within it.
In reaching that conclusion, the Commissioner placed weight on the fact that the generator, although bolted in place, could be removed without damage to the building. This aligned with the reasoning in an earlier determination (202TACD2025) concerning a calf‑feeding machine, where similarly installed equipment was held not to constitute building works. The Commissioner also drew support from EU VAT principles distinguishing immovable property from movable equipment, noting that machinery capable of removal without altering the structure remains movable property.
The Commissioner rejected any suggestion that minor alterations, such as the creation of a small wall opening to facilitate the generator, brought the expenditure within scope, finding such changes insufficient to constitute construction or alteration of the building.
The appeal was dismissed, and the refusal of the VAT repayment was upheld, on the basis that the expenditure related to equipment rather than qualifying building works under the 2012 Refund Order.
26TACD2026 – CGT Computation: Evidence of Costs and Losses; Loan Notes as “Debts on Security”
This appeal concerned a CGT assessment for 2018 arising from the disposal of an investment property for €2.5m, with Revenue issuing an amended assessment of €457,216 (comprising €415,651 CGT and a surcharge of €41,565). The Appellant had not originally returned the disposal and, during a subsequent audit, submitted a Form 11 which also omitted the gain and any capital losses.
The Appellant argued that the assessment overstated the gain, contending that it failed to account for acquisition costs, disposal costs, enhancement expenditure, the value of contents included in the sale, and significant capital losses (including a €2 million failed investment and a €240,000 property loss). A revised computation submitted by the Appellant reduced the gain to nil after losses.
Revenue accepted certain elements, including legal fees and indexation, but disputed the majority of the adjustments. It argued that no reliable evidence had been provided for enhancement expenditure, contents, or claimed losses, and further contended that any loss claims were out of time under section 959V TCA 1997 as they had not been made prior to the audit intervention.
The Commissioner emphasised that the burden of proof rests squarely on the taxpayer to demonstrate that an assessment is incorrect, applying the balance of probabilities standard. In reviewing the contested items, the Commissioner found that the Appellant had failed to substantiate several key claims. The asserted €70,000 value for contents was unsupported by the contract of sale or by any documentary or oral evidence, and was therefore rejected. Similarly, the claimed €305,000 enhancement expenditure and the €240,000 Padstow property loss were disallowed due to the absence of supporting documentation.
The most complex issue concerned a claimed €2m loss on an investment structured through shares and loan notes. The Appellant contended that the loan notes constituted “debts on security” within section 541 TCA 1997, such that losses would be allowable for CGT purposes. Applying case law including Mooney v McSweeney and O’Connell v Keleghan, the Commissioner held that a debt on security requires an identifiable “bundle of rights” rendering the instrument marketable or capable of appreciation. In the absence of contemporaneous documentation establishing the nature and rights attaching to the loan notes, the Commissioner found that the Appellant had failed to demonstrate that the instruments met this threshold. Accordingly, the loss was not accepted.
The Commissioner accepted limited elements of the Appellant’s position, including stamp duty (€93,135), legal fees on acquisition (€12,190), and legal fees on disposal (€20,624), all of which were supported by evidence. No other costs or losses were allowed. The resulting revised gain was €1,247,911.56, giving rise to CGT of €411,810.81.
The appeal was therefore partly successful, reducing the assessment to reflect allowable acquisition and disposal costs only. The Commissioner noted that she had no jurisdiction to alter the surcharge and reiterated that the statutory framework requires strict adherence, particularly where taxpayers fail to maintain or produce contemporaneous records.