Éamon Ó Cuív urges pre-Dec 4 CRSS claims be judged by Nov 3 rules

Minister, shortly after the CRSS scheme was announced, guidelines issued on the 3rd of November for the scheme. Based on these guidelines, many businesses applied for the scheme and spent time and money preparing applications. In early December, many of these businesses who were badly hit by the restrictions the Government brought in both in the spring and in the autumn, effectively closing their businesses, were stunned to receive letters of refusal based on new guidelines published on the 4th of December. In the guidelines issued on the 3rd of November, the relevant condition of eligibility was the company's self-employed partnership carries on a trade or trading activities from a premises located wholly within a region of the country for which restrictions announced by the Government to combat the effects of COVID-19 are in operation. Furthermore, the regulations of the 3rd of November go on to clearly define what a business premises are. For the purpose of the CRSS, and I quote, Business premises is the building or similar fixed physical structure in which a business activity is ordinarily carried on. Mobile premises or premises which are not permanently fixed in place do not meet the definition of business premises. Examples of what would not meet the definition of a business premises for these purposes include taxis, vans, trucks or similar vehicles. Stalls such as market stalls or fair trade stalls and circuses or funfares which are not permanently in place. On the 4th of December, new guidelines issued with major changes in the definition of a business premises. This sums up in the sentence, ordinarily carried on from a business premises requires that the business activity takes place in the business premises. However, it is accepted that a minor element of the activity may take place outdoors, for example, a restaurant with an outdoor seating area connected to or adjacent to the restaurant. This new definition excludes outdoor activities even if the tickets are purchased in a building on the basis that the activity is carried outdoors. The guidelines then exclude such activities as outdoor team and amusement parks, commercial visitor farms, camping and caravan sites, commercial gardens and parks, outdoor activity centres for example, pinballing, go-karting, ziplining, golf courses, pitch and putt courses, driving ranges, clay pigeon shooting, outdoor water sports centres, bus tours, bike tours. I understand that even boats such as the Jeanne Johnson and the Kilarna right outside the door which never move and which are fixed restaurants in a fixed place are considered excluded. Now, two principles arise, Minister. The principle that an application can only be judged on the ruling fourth on the day of application. Therefore, I contend that all applications received before the 4th of December should be adjudicated on, based on the guidelines at the time, the 3rd of November. The second issue is why the rules changed. These excluded businesses suffered as significant losses due to COVID restrictions as the now post-4th of December eligible businesses. In relation to one Minister, I am sure that the Ombudsman would have something to say about this sharp practice which could leave serious eggs on the face of the Department and Revenue. And it's no point in telling me these were only guidelines. All of the directions for the revenue, I understand, are called guidelines. But it doesn't mean that it wasn't the rulebook at the time and that you rewrote the rulebook post-factum after these applications were in. I have no problem with applications after the 4th of December. I don't know why you did it. It's small minded. But I can understand the logic before the 4th of December, judge them on the guidelines you published. I want to thank the Deputy for raising this issue and hopefully the debate here this evening will help clarify some of the issues involved which the Deputy has raised which did cause legitimate confusion earlier on in the scheme. The CRSS is targeted support for businesses significantly impacted by restrictions introduced by the Government under the public health regulations to combat the effects of the COVID-19 pandemic. The support is available to companies, self-employed individuals and partnerships who carry on a trade or activity, the profits of which are chargeable to tax under Case 1 Schedule D from a business premises located in the region subject to restrictions introduced in line with living with the COVID-19 COVID-19. The eligibility to make a claim under CRSS a business must under the specific terms of the regulation be required to either prohibit or significantly restrict customers from accessing its business premises or to purchase goods or services which result that during the period of restrictions turnover does not exceed the amount based on 25% of the average weekly turnover of the business in 2019 or in 2020 in the few cases that of a new business. The legislative basis for CRSS is section 11 of the finance bill 2020 which is finalised through the Euroccess Sam the day before yesterday. Revenue is administering the scheme and has published detailed guidelines on its operation which are available on the website. The guidelines are based on the terms and conditions of the scheme as set out in the legislation. The purpose of the guidelines is to assist businesses in understanding the scope of the scheme, assessing their eligibility to making a claim. The guidelines published on the 4th of December are an update of the previous guidelines in order to address the common queries and issues raised by taxpayers in relation to eligible businesses, how to make a claim and also to reflect the recent announcement of the restart week available to businesses who have recommended on the lifting of the COVID restrictions. I can be clear that this update did not introduce new conditionality in relation to CRSS and there can be no question as to a business which was previously eligible becoming ineligible after the publication of the 4th of December updated guidelines. Therefore, it is not a question of which such guidelines should apply. I restate that. The original guidelines were issued. A lot of businesses contacted revenue for clarification and they may not have been clear. The Government issued more amplified guidelines, none of which changed the original rules but provided additional information to potential applicants or people who were making applications. The scheme commends with effect from 13 October and is in place until 31 March next year and operates on a self-assessment basis. A person registering their details and the details of the business activity for the purpose of making a claim should retain evidence of their basis for making a claim under the scheme. Where a person's application or claim is selected for verification by the revenue, revenue will request such evidence to verify a person's entitlement to make a claim under the scheme. I consider that it is appropriate that revenue issued clarification to assist businesses in assessing their eligibility. This is preferable to businesses wrongly making a claim which has to be repaid subsequently. This was issued for clarification purposes so people would be clear as to whether they were eligible or not eligible, not to put businesses through a process of making an application for something that wasn't eligible. The revenue clarification made it clear in advance of people doing that and where people had them already submitted, the revenue felt it would be beneficial to provide further clarification but no amendments, just an amplification to help potential applicants. So that they wouldn't make a claim if they weren't eligible in the first place. And if they did make a claim that they wouldn't be found to be not entitled to make a claim at a later date if there was a revenue audit and therefore possibly making them liable for a potential refund. Thank you, Minister. Minister, it is one of the most fantastic Alice in Wonderland scripts I have ever heard. Changing the rules is now defined in the new Eurospeak as clarification. The rules were clear and very, very clear. And unfortunately people will have to pursue on the basis of what the rules were when these people applied. Now I have no problem somebody realising that a scheme might not be to their liking and deciding to change the rules. That is perfectly legitimate. Departments do that all the time. But the rule is you can't do that post-factum. In other words, the rules that apply on the day you apply are the rules that apply. And there is no point pointing to the Finance Act for two reasons. The Refluence Act, I understand, is moot on the particular point that we are discussing here of the businesses excluded. And the second thing, it is post-factum as well. The scheme was introduced and the applications were issued before the law became law. So how could they actually introduce the scheme before they knew what the Oireachtas would do? And the government cannot presume on what the Oireachtas might do. And if you might remember in the last oil, there was a famous bill that went through that was going to amalgamate Galway, a city and Galway County Council, and the Oireachtas decided that the government couldn't do it. So it's a presumption for government, if they didn't have the administrative ability to introduce the scheme, and to then presume that they would bring in a law to actually honour the commitment they had given to the people in the budget. So, Minister, what I am calling on you to do, is rather than save everybody the time of going if they have to to litigation on this issue, is to admit that those applications that were in under the old scheme, and stop the Alice in Wonderland talk about clarifying, and it was perfectly clear to everybody except finance, what it meant. And it was a very precise written document, and pay out to the people who were in in time, and admit that you had to change the rules because you didn't intend these to be in. I clarified the speaking rules, two minutes, Minister. Thank you, Alas. And just by way of information, so the public will be aware of those who were watching up to yesterday, 15,000 businesses had registered for this scheme, covering 17,900 premises, 2,400 new applications have been just received in the last day or so. Claims totalling 111.6 million in respect of 15,300 premises have been received, and 110 million has already been processed for payment. So we are at a 99% process of payment in respect to valid applications that have been received. The other point I do want to make to the Deputy, and he has mentioned the possibility of having this matter re-examined without going to litigation to the Ombudsman. I would suggest, and the Deputy will have to take a clear note of this, because this is a taxation measure in relation to an advance credit in respect of trading expenses, very much a financial measure and a taxation measure, and because of that the appeal mechanism in respect of the revenue commissioners in relation to a tax matter is specifically stated in the legislation, it has to go to the Tax Appeals Commission in relation to a taxation matter rather than the Ombudsman. The issue of processing and the administration of it may be a matter for the Ombudsman, but in relation to a query of the underlying tax credit that may be available is a matter for the Tax Appeals Commission as set out in the legislation, which can be a more cumbersome process than the Ombudsman. Finally, what I want to say is, the regulation made it very clear all along the issue to a business premises and access to the business premises. If I can make it very simple, the fact that there is outdoor activity going on in a location generating income and there happens to be a premises on the particular site does not allow the outdoor activities to be included under the CRSS scheme. It is only those activities carried on in the actual premises, such as if there is a shop or a cafe on the premises, the revenue in respect of that can come under CRSS, but the outdoor activities which are not carried on in the premises is not eligible even though it is the one business. Thank you! Thank you! Thank you, everyone! Thank you