345 / 482
GAZETTE.
ness would have collapsed but for
her activites. The Judge therefore
concluded that she worked sub-
stantially on a full-time basis in her
uncle's business so as to fall within
the terms of the relief.
Under Section 83 FA 1989, the
nephew must now work a mini-
mum number of hours per week in
the business. This requirement is a
precondition to the application of
Judge Sheridan's test. Paragraph 9
(2) differentiates between two
situations, firstly where the uncle
is the owner and there are a
number of other employees or
helpers and secondly, where the
uncle, " a n y " spouse and the
nephew are the sole workers in the
business. The time requirement in
the latter is less than in the former.
The primary requirement now is
that a nephew must work more
than 24 hours a week for the
disponer or the company, at the
place where the business is carried
on. An example of this is an em-
ployee of an uncle's company. This
requirement is reduced to 15 hours
in circumstances where the uncle
and " an y" spouse of the disponer
and the nephew are the sole per-
sons engaged in the business. This
applies to situations where the
uncle is unmarried as the wording
is " any" spouse.
It would appear that these pre-
conditions were introducted for
two reasons: firstly, because the
Revenue Commissioners felt that
the principle in the
AE case
was too
wide and, secondly, to provide for
the decision of Judge Sheridan in
the case of
D.R. -v- The Revenue
Commissioners.
11
In that case the
taxpayer Appe l l ant was the
remainderman of a life settlement.
The settlor was his uncle and the
life tenant was the uncle's spouse.
After the death of the uncle the
nephew helped in the business and,
when the spouse became incapaci-
tated, he effectively took over the
business. One of the questions
which the Circuit Court had to
decide was whether the nephew
was working substantially on a full-
time basis. The facts were that the
business was a small rural public
house. Generally in summer it was
open during normal licensing hours
and in winter it was open from 8.00
p.m. to closing time. The taxpayer
had a full-time job at a local
SEPTEMBER 1989
hospital, but worked in the pub
most nights and at weekends.
During the summertime, when the
pub was open during the day, there
was another employee to help. The
nephew was effectively running
the business. However, the Judge
held, in an
ex tempore
judgment
that because the other employee
was working in the business, the
taxpayer was not working sub-
stantially on a full-time basis. It was
argued on behalf of the taxpayer
that he was
assisting
substantially
on a full-time basis, particularly
having regard to the aunt's in-
capacity. This argument was
rejected by the Court.
This decision may be compared
with the decision in the
AE case
where the taxpayer Appellant spent
less time but did all the work and
where there were no other em-
ployees. The decision in the
D.R.
Case
suggested that a taxpayer
could not have alternative em-
ployment and be a favourite
nephew at the same time. Aside
from the question of whether a
remainderman can be a favourite
nephew (which is considered
below) under Paragraph 9 as newly
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