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GAZETTE
SEPTEMBER 1988
Practice
Notes
Capital Gains Tax
The Revenue Commissioners have
recently confirmed to the Society
that the guidelines published in the
November 1979
Gazette,
which are
r e - p u b l i s h ed be l ow, are s t i ll
applicable.
Capital Gains Tax
There have been a number of
que r i es t o t he Co n v e y a n c i ng
Commi t t ee about the position of a
Pu r chaser wh e re t he Vendor
argued that a particular property
was not liable for Capital Gains Tax
by reason of being the Vendor's
on l y or ma in r es i dence, and
declined to furnish a Capital Gains
Tax Clearance Certificate.
The legal position is quite clear.
The q u e s t i on of w h e t h er a
particular transaction is or is not
liable to Capital Gains Tax is not
r e l evan t. A Pu r chaser is not
required to make any enquiries
about the Vendor's tax liability nor
obliged to consider any information
about it that may be given to him.
All that is relevant is the amount of
the consideration. If it is over
£ 5 0 , 0 00 the Solicitor for the
Purchaser must insist on a Capital
Gains Tax Clearance Certificate or
make the deduction prescribed by
the Act f r om the amount of pur-
chase money paid by him.
A Solicitor should not offer nor
accept an undertaking to furnish
Ca p i t al Ga i ns Tax C l ea r an ce
Certificate. Solicitors are reminded
of the severe sanctions available
against t hem personally if they fail
to fulfil the duties imposed upon
t hem by the Statute.
Capital Gains Tax: New Housas
Membe rs will have no t ed t he
increasing number of new houses
where the total price being paid by
Purchasers exceeds £50 , 000.
Doubts have arisen as to the
need for CGT Clearance Certifi-
cates in such cases. The following
appears to be the position:
(1) Where there is an agreement
for the purchase of a site and that
agreement is separate from and
unconnected w i th another agree-
ment to erect a building on their
site, a CGT Clearance Certificate is
not required for the protection of
the Purchaser unless the price of
the site itself exceeds £50 , 000.
(2) An Agreement for Sale and
Building Agreement wh i ch are
cons i de r ed s u f f i c i en t ly uncon-
nected by the Revenue Commiss-
ioners to enable the Revenue
Commissioners to assess Stamp
Duty on the Site Value only, should
also satisfy the criteria for CGT
purposes.
(3) If the Contracts comprise a
combined Building Agreement and
Agreement for Lease or if separate
contracts are interconnected, then,
if the total consideration exceeds
£50 , 000, the Solicitor for the
Purchaser must insist on getting a
CGT Clearance Certificate, or make
the deduction prescribed by the
CGT Act 1975.
Cou r t s -Ma r t i al
(Legal Aid) Regulations,
1988
S.I. No. 125 of 1988
These Regulations provide for
increases, w i th effect from 27
April, 1988, in the legal aid fees
payable to solicitors, in respect of
certain attendances at c o u r t s -
ma r t i al and visits to prisons,
d e t e n t i on ba r r acks and o t her
custodial centres.
The fees payable to a solicitor
assigned to a case, under Regula-
tions 12(2)(a) of the C o u r t s-
Martial (Legal Aid) Regulations,
1986 to 1988, shall be £ 9 9 . 24
together w i t h, if the hearing lasts
for more than one day, £44.14 for
each day or part of a day after the
first for wh i ch the hearing lasts and
for wh i ch the solicitor attends the
hearing.
The fee payable under Regulation
14 in respect of a visit by a solicitor
to a prison, detention barrack or
other custodial centre, shall be
£25 . 73 for each such visit plus
travelling expenses.
Jur i sd i c t i on of Courts
and Enforcement of
Judgmen ts (European
Commun i t i es Ac t, 1988).
S.I. 91 of 1988 gives effect to this
Act (passed on 5 March, 1988) as
and from 1 June, 1988.
The legislation changes the
c ommon law rules on the Jurisdic-
t i on of Irish Courts in cases
involving international aspects and
f a c i l i t a t es t he r e c o g n i t i on of
judgments from other E.E.C. states.
(See Gazettes Dec., 1985, Jan/Feb.,
1986 and June, 1987).
The Act is available from the
Goverment Publications Sale Office
at a cost of £4.10 plus postage.
The High Court
Practice Direction
The attention of practitioners is
drawn to the Jurisdiction of Courts
and Enforcement of Judgmen ts
(European Communities) Act, 1988
(N. 3 of 1988) wh i ch came into
operation on 1st June 1988 in
accordance w i th the provisions of
Article 2 of the Jurisdiction of
Courts and Enforcement of Judg-
ments (European Communities)
Act, 1988 (Commencement) Order,
1988 (S.I. No. 91 of 1988).
Pending the making of amend-
ments to the Rules of the Superior
Courts by the Superior Courts
Rules Committee, a s ummo ns
wh i ch is to be served out of the
Jurisdiction may be issued w i t hout
the leave of the High Court, if but
only if, it comp l i es w i t h the
following conditions:
(a)That each claim made by the
summons is one wh i ch by virtue of
the Jurisdiction of Courts and
E n f o r c eme nt
of
J u d g m e n ts
(European Communities) Act 1988
the Court has power to hear and
determine: and
(b)That the summons is en-
dorsed before it is issued w i t h a
s t a t ement t hat the Court has
power under the Jurisdiction of
Courts and Enforcement of Judg-
ments (European Communities)
Act, 1988 to hear and determine
the claim, and that no proceedings
involving the same cause of action
are pending be tween the parties in
another Contracting State.
C o n t r a c t i ng S t a te f or t he
purpose of this Practice Direction
means Belgium, Demark, France,
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