223 / 264
GAZE1TE
DECEMBER1977
discharge the onus of proof by establishing one or other
of two things namely, that the exercise of the right would
be unlikely to diminish the value of the assets or to make
them more difficult to dispose of in the course of
administration, but that such an applicant was not obliged
to establish that
both
consequences would follow. He
submitted that in a case such as the present, wheré no sale
of the assets is contemplated, the fact that the exercise of
the right might diminish the value of the assets was
irrelevant and that the exercise of the right would in no
way impede the personal representative in distributing the
assets in due course of administration. This was the view
taken by the trial judge who interpreted the word "them"
as meaning "the assets of the deceased other than the
dwellinghouse" and the word "dispose" included
voluntary distribution amongst the beneficiaries in specie.
I regret that I cannot accept these conclusions.
Reading the paragraph in its entirety it seems to me clear
that what the subsection requires the court to be satisfied
of is that neither of the specified eventualities is likely to
happen.
In my opinion the submissions on behalf of the plaintiff
CAPITAL GAINS
TAX SINGLE
TRANSACTIONS
In reply to queries raised by the Society, the following
statement has been issued by the Revenue Commissioners
Under section 5 of the 1975 Act, Capital Gains Tax is
charged by reference to a year of assessment ending on the
fifth day of April and the tax falls due for payment within
three months after the end of the year of assessment or at
the end of two months after the date of making the
assessment whichever is later. This procedure is designed
to secure that all gains accruing within the year are
aggregated and that any allowable losses are deducted so
that normally only one composite assessment is made for a
particular year.
It happens in many cases, particularly in relation to land
and/or buildings sold as an entirety, that there is only one
disposal in the course of a year and that this situation can
reasonably be anticipated at the time the single disposal is
being finalised. The vendor in that type of case may wish to
have any Capital Gains Tax Liability arising agreed and
paid at the time the sale is being closed, so that he may
receive the net consideration free of any further liability for
this tax on the particular transaction and avoid having a
demand for payment served on him some time after the
event.
on the construction of this portion of the paragraph must
also fail. Accordingly the appeal must succeed. It must be
held, in my view, that the plaintiff has failed to establish
under s.56 the right of appropriation sought by her.
Whether she is otherwise entitled to the dwellinghouse is a
matter that must await the outcome of the pending appeal
in the partition suit.
S.56(11) of the Succession Act, 1965, requires all
proceedings in relation to s.56 to be heard in chambers.
This does not mean that the judgment in such proceedings
in chambers may not be published: see per Lord Denning
M.R. in
Wallersteiner v. Moir
1974 3 All E.R. 217 at P.
229. The decision in this appeal is being given in court
rather than in chambers so that the opinion of the Court
as to the correct interpretation of s.56(5Xb) may be
promulgated. However, - in order to preserve the
confidentiality inherent in the requirement of a hearing in
chambers, all identifying facts and circumstances,
including the names of the parties, are omitted from this
judgment.
H. v. H.—Supreme Court (Henchy J., Griffin J. and
Parke J.)—unreported—13th May, 1977.
The Society has been advised by the Revenue
Commissioners that, where a Member has been instructed
to deal with the matter in this way, Inspectors of Taxes and
their staffs will be glad to co-operate in order to arrange
prompt settlement of the liability (granted normal delays,
particularly where an election is made to base the computa-
tion on market value at 6 April 1974 rather than on time
apportionment) and to arrange for the issue of an official
receipt for tax paid even though the year of assessment
may not yet have expired. Members so instructed should
communicate with the Inspector who normally deals with
the Income Tax affairs of the vendor as soon as possible
after the contract for sale has been signed.
17 November, 1977.
PRACTISING CERTIFICATES
At the Council Meeting on 16th December,
1977, the Council of the Society voted
unanimously to strongly recommend that the
fees payable for the annual Practising
Certificatre for an assistant solicitor should be
payable by the employer on 6 January, in any
year (being thr statutory date of issue of the
Certificate).
James J. Ivcrs,
Director General.
184