Ireland based companies are currently very attractive as they can be leveraged for intellectual property exploitation. Until recently, Irish companies were most commonly used as intermediary licensing companies. As of May 2009, Ireland is also an attractive jurisdiction to hold intellectual property profitably.

Ireland: a top choice for royalties
The reason Ireland is such an attractive option for royalty recovery is that there is generally no withholding tax on outgoing royalties (with the exception of patent and mining royalties, but even these may be exempt in certain circumstances).

For many licensing structures, Ireland will be the best location for an intermediary licensing company for the exploitation of all types of intellectual property. With its new, convenient capital grants system, Ireland is now an ideal location for the development, ownership and exploitation of intellectual property. It is important to remember that every case is different and proper advice must always be sought.

About license payments
Royalties from Irish companies may be subject to a 20% withholding tax. However, there is an exception if the recipient is a resident of an EU or contracting state in which royalties are subject to tax. Even where these conditions are not met, by appropriate structuring and by ensuring that the payment is not treated as Irish originating (i.e. ensuring that the patent is not registered or exploited in Ireland, that an Irish bank account is not used, and related agreements are not governed by Irish law etc.) it will in many cases still be possible for an Irish company to pay royalties on patents without deduction of Irish withholding tax.

Structures where the Irish company is the IP owner
Alternatively, an Irish company may be used to hold the intellectual property beneficially, having either developed it in-house or purchased it (including from a connected party, in which case the purchase price will be capped for tax purposes at the arm’s length price). Generous tax allowances are available against income earned from the exploitation of intellectual property including patents, copyright, trade marks and brands and know-how (where the income is directly attributable to intangible assets). The allowances available are equal to the depreciation or amortisation charge shown in the accounts in accordance with generally accepted accounting principles.

The allowances can only be set against income or sales derived from the use or exploitation of the intellectual property, and are limited to 80% of the profits from such activities in any given year. With the right structuring, the average tax rate can be brought down to 2.5%. In order to claim Irish tax relief on the cost of intellectual property, the company must be actively exploiting it, or products deriving from it, in Ireland. This requires an office and employees located in Ireland. This requirement does not apply to those utilising an offshore structure.

Note that appropriate structures could be put in place to ensure that dividends paid by the Irish company out of its post-tax profits are not subject to withholding tax.