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GAZETTE
OCTOBER- 1977
age of eighteen. It contains provisions about the minimum
age for entry into employment, sets limits to the working
hours of young people, provides for rest intervals and
prohibits night work. It also requires employers to keep
records of the ages and working times of employees under
eighteen years of age.
The Department of Labour has prepared very helpful
explanatory booklets on each of these Acts, and while
these booklets are not a legal interpretation of the Act,
they are well worth having.
SALE OF LAND BY RECEIVERS
(1) Registered Land
Where the Receiver of a Company is selling registered
land of which the Company is registered owner the Land
Registry insist that the Deed of Transfer be executed
under Seal in accordance with the Company's
Memorandum and Articles of As s oc i a t i on
notwithstanding the fact that the Debenture under which
the Receiver is appointed will invariably confer power on
the Receiver to act as the Company's agent and to inter
alia sell or concur in selling all
Of
part of the Company's
property. From a practical point of view this is most
unsatisfactory since it makes the Receiver entirely
dependent on the co-operation of the Directors of the
Company unless of course the Articles of Association
have been amended to provide for the Seal to be
countersigned by the Receiver. In the absence of such a
power the only apparent method of obviating this
difficulty is for die Mortgagee to sell under Section 62 of
the Registration of Title Act 1964.
(2) Unregistered Land
Butterworths Forms and Precedents indicate (Vol. 19
p. 1139) that if the conditions of the Debenture confer
upon the Receiver not only a power of sale but also a
Power of Attorney to execute instruments and assurances
in the name of the Company the Receiver will be able to
convey the legal estate in the property. There is however a
body of legal opinion which holds that a company cannot
by a Debenture confer a Power of Attorney on any other
person to act in contravention of its Articles of
Association.
At present there appears to be no standard practice for
the execution of Deeds by Receivers. The result is that
purchasers are obliged to adopt a conservative view and
to insist that the Seal be affixed to the Deed in accordance
with the Company's Articles of Association. For the
Receiver this creates endless problems as he is obliged to
procure the co-operation of the Directors who are often, if
not always, quite hostile.
The problem warrants some thought.
FAMILY HOME PROTECTION ACT, 1976,
SECTION 4
Practice Note
The President of the High Court has directed that, in
applications under sub-sections (3) or (4) of Section 4 of
the Family Home Protection Act, 1976, where the spouse
whose consent is required cannot be served as a party, the
fact of desertion or of unsoundness of mind or other
mental disability or of inability to trace should be
corroborated on Affidavit by some responsible
disinterested person confirming the material facts
contained in the Affidavit of the applicant spouse.
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DID YOU KNOW?
CAPITAL GAINS TAX ACT 1975
AND
SALES OF PROPERTY AFTER DEATH OF
OWNER
The personal representative (PR) is deemed to acquire
the assets of which the deceased was competent to
dispose at date of death as if the PR's acquisition was the
acquisition by the deceased (section 14[ 1])
but
the PR is
treated as a single and continuing body of persons and
not
an individual (section 14 [3] and schedule 4-1312]). This
means that PRs are not entitled to exemption which may
be claimed by individuals such as:
(i) Section 25 relief on sale of deceased's private
residence
(ii) Section 16 relief on gains of £500 or under in any
one year
(iii) Section 17 relief on disposal of tangible movable
property for less than £2,000
(iv) Section 4(3) relief in respect of gains from
disposals of assets outside the State where the
deceased was not domiciled in the State.
The PR is treated as having the deceased's residence,
ordinary residence and domicile at date of death (Section
14(3).
Where an asset is acquired by a person as legatee, no
chargeable gain accrues to the PR and the acquisition by
the legatee is treated as if it was the acquisition by the PR
(section 14(4)). Thus in some circumstances a legatee may
be deemed to have acquired an asset upon the acquisition
by the deceased.
It maybe important in some circumstances as to in
which capacity a PR/legatee may sell assets of the
deceased and in particular the private residence. The
following is an interesting example where the PR/legatee
has also been residing in the private residence:
Mother, (M), resides with son, (S), and M owns the
dwellinghouse. M dies either testate or intestate and S
extracts appropriate Grant either as Executor of the
Will or Administrator. S decides to sell dwellinghouse.
(i) If S sells as PR the gain is chargeable as if S had
acquired the dwellinghouse when M acquired same
but without any exemption for private residence.
(ii) If S assents to the vesting of dwellinghouse in
himself and sells as beneficial owner, his
acquisitions is taken to be that of PR, which in
turn is taken to be that of M and he is entitled to
the exemption for private residence because he is
an individual and was resident during the whole
period of his ownership.
DID YOU KNOW?
LIABILITY FOR RATES
A person who is not primarily liable for rates (i.e. a
purchaser) is not obliged to pay for arrears of rates unless
proceedings are commenced within two years of the
making and publishing of the said rate.