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• GAZETTE
JANUARY/FEBRUARY 1988
LAW SOCIETY
ANNUAL CONFERENCE
5 - 8 May 1988
This year's Law Society Conference, which will be held in Jury's Hotel, Cork, from May 5 to May
8 inclusive, will have as its centrepiece presentations by David Andrews entitled "Mak i ng the Law
Office Wo r k" and "Practice Development".
David Andrews is a former Chairman of the International Bar
Association's General Practice Section and served as Chairman of
the Section's Committee on Law Office Management and
Technology. A former Managing Partner of a major London practice,
he is currently the principal of the David Andrews Partnership which
operates a consultancy in association w i th the well-known
American firm of Altman & Weil.
Further details of the Conference will be circulated to members
shortly.
their own affairs by reason of "age
or improvidence, or of physical
men t al or legal i n c a p a c i t y ":
s.108(d) FA 1984.
S.65 FA 1985 exempts t wo
further categories of trust property.
These are (a) trust property subject
to a discretionary trust on the
termination of which the State will
take a gift or an inheritance, and (b)
a sum wh i ch is the subject matter
of an inheritance deemed to be
t aken by t he t r u s t e es of a
discretionary trust by reason of
s.31 CATA 1976.
The first of these is relatively
s t r a i g h t f o r wa r d. An obv i ous
example would be a bequest to the
State, subject to a discretionary
trust to maintain the testator's
w i dow during her lifetime.
The second is more obscure. It
appears to relate to property which,
wh i le not being ac t ual t r ust
property, is nevertheless property
of which the trustees of a dis-
cretionary trust have the " use
occupation or en j oymen t" other-
wise than for " f u ll consideration in
money or money's wo r t h" within
the meaning of s.31(1) CATA 1976.
In the normal course of events,
the trustees of a discretionary trust
f avou r ed
w i t h
such
" u s e
occupation or enjoyment" would
take no gift or inheritance, neither
they nor any of the potential
ob j e c ts of t he t r u st
being
" b e n e f i c i a l ly
en t i t l ed
in
possession" within the meaning of
s.5(1) or s.11(1) CATA 1976.
Why the enactment of s.106(1)
FA 1984 and s. 103(1) FA 1986
should affect the position is not
clear
,d)
. The notional " s u m "
brought into being by s.31(3) CATA
1976 has no real existence and is
therefore incapable of becoming
"subject to a discretionary t r u s t"
within the meaning of s.106(1) FA
1984 and s.103(1) FA 1986. This
essen t i al p r e - c ond i t i on be i ng
absent, it follows that the " s u m"
would not be subject either to the
once-off inheritance tax of 3%
imposed by s.106(1) FA 1984 or to
the annual inheritance tax of 1%
imposed by s.103(1) FA 1986. If this
is so, the exemption in s.65(b) FA
1985 wo u ld appear to be
unnecessary.
Conclusion
It is a l ways t emp t i ng to
denounce the iniquities and imper-
fections of new fiscal legislation. It
is a temptation which the writer
proposes to resist in the present
instance and content himself w i th
pointing out, should such comment
be necessary, t h at t he new
legislation is a minefield, and
doubly
<e)
so w i th the introduction
of the stringent self-assessment
provisions in s.104(e) FA 1986. The
case for the careful administration
of discretionary trusts, and their
regular
r ev i ew
aga i nst
an
i nc r eas i ng ly
hos t i le
f i s cal
background, is plain for all to see.
FOOTNOTES
(a ) To this there is an unimportant exception
in s.104(b)(ii). Those interested are
referred to the Act.
(b) ". . . as if the trust and the trustees as
such for the time being of the trust were
together a person . . .": s.106(1) FA 1984
and s.103(1) FA 1986.
(c ) Subsequently appointed trustees are
likewise primarily accountable: s. 107(1)
FA 1984.
(d ) At any rate, to the writer, and to those
of his colleagues with whom he has
discussed the paragraph.
(e) Literally. See s.108(b) FA 1986.
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