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GAZETTE
JULY/AUGUST 1992
property to his son who subsequently
transfers the property into joint
names of himself and his spouse
within three years of the first gift,
the Revenue Commissioners have
made it clear that they may regard
this latter transaction as a gift
between parent-in-law and daughter-
in-law, to the extent of half the
property.
Furthermore, if a wife gives property
to her husband, who subsequently
transfers the property into the name
of his parents within three years of
the first gift this latter transaction
would be deemed to be a gift
between daughter-in-law and
parents-in-law.
Section 8 only applies to gifts and is
an anti-avoidance provision.
In the context of family settlements
one must be wary of any inter vivos
disposals within three years of the
proposed disposal, as these may be
caught by the provisions of Section 8
of the Capital Acquisitions Tax Act,
1976.
To avoid the provisions of Section 8
one must either await the elapse of
the three year period or in the
alternative dispose of the property
by will.
This anti-avoidance provision also
relates to gifts made within three years
before the date of the gift. It may be
possible that the Revenue
Commissioners may accept that the
subsequent gift does not come within
the provision when the subsequent gift
was not connected with the first gift.
Taxation
Committee
Statutory Instruments: Public
Procurement
Statutory Instruments No. 36-38 of
1992 implement European
Community rules on public works
contracts, public supply contracts,
and the review procedures applicable
to the award of such contracts. The
Community rules in question are
designed to end discrimination by
public bodies in favour of domestic
suppliers and thus to allow open
competition in public procurement
markets among suppliers from any
part of the EEC.
1. Statutory Instrument No. 36
(Public works contracts)
This gives effect to the Council
Directives concerning (i) the co-
ordination of procedures for the
award of public works contracts to
which the Directives apply, and (ii)
the abolition of restrictions on
freedom to provide services in
respect of public works contracts.
Contracting authorities must comply
with the Council Directives which set
out the tendering procedures to be
followed for public works contracts,
and the criteria to be followed by the
authority when awarding the
contracts on the basis of the tenders
received. Any provision laid down by
law, regulation or administrative
action, which imposes or permits
discrimination on the basis of
nationality is now abolished. The use
of technical specifications in
advertisements to tender which have
the effect of favouring or eliminating
certain undertakings or products is
prohibited.
The SI also stipulates that
contracting authorities must state in
their contract the source from which
the tenderer may obtain information
as to the applicable employment
protection provisions.
Professional advisers may be asked
about the procedures to be followed
in respect of public works contracts,
either by Irish clients who wish to
tender abroad, or by foreign clients
who wish to tender for such a works
contract here.
2. Statutory Instrument No. 37
(Public Supply
Contracts)
This gives effect to the Council
Directives concerning the co-
ordination of procedures for the
award of public supply contracts to
which the Directives apply. It
provides that contracting authorities
must follow the procedures for
awarding such contracts set out by
the Directives and may not
discriminate against non-national
suppliers. They must also ensure that
technical specifications are not used
so as to discriminate against
particular undertakings or products.
3. Statutory Instrument No. 38
(Review procedure for the award of
public supply and public works
contracts).
This implements Directive 89/665
which aims to oblige Member States
to provide sufficient remedies under
national law to those who have
suffered as a result of a breach of
the public procurement rules set out
in the other Directives. The Directive
emphasises that decisions taken by
bodies responsible for review of
procedures must be capable of being
effectively enforced.
To this end, the body responsible for
reviewing procedures in this
jurisdiction is to be the High Court.
The High Court may order interim
measures to correct the alleged
infringement or to prevent further
damage, where such measures would
have a beneficial effect.
The High Court may also, where
appropriate, set aside unlawful
decisions, by declaring a contract, or
a provision of it, to be void, or by
declaring that the contract shall have
effect only subject to such variation
as the court shall think fit.
It may also award damages to any
person harmed by an infringement,
where it considers this appropriate.
This review procedure seeks to
maximise the effectiveness of the
Community rules on public
procurement with respect to public
works contracts and public supply
contracts. Any aggrieved client who
feels that he has been deprived of a
contract through an incorrect
application of these rules should be
advised of the possibilities offered by
this procedure.
It should be remembered that clients
also have the option of a direct
complaint to the European
Commission which may decide to
initiate proceedings against the
Member State if it considers that the
state in question has failed in its
duty to ensure the full application of
Community rules on public
procurement.
EC/International
Affairs
Committee
218