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R E V I E W S
DECEMBER 1995
Irish S t amp Duty Law
by David Donegan and Raymond
Friel. Published by Butterworths;
445pp; IR£60.00 hardback.
Unlike all other taxes, stamp duty
applies to instruments and not
transactions and an instrument is
chargeable to duty only to the extent
of that which is achieved by the
instrument. Donegan and Friel in their
attractive and very readable textbook,
Irish Stamp Duty Law explain the
principles underlying stamp duty and
light up a clear path for the reader
through the maze of duties, reliefs and
related case law spanning more than a
century. The book introduces the
reader to the Irish Legal System and
legal terminology. The relationship of
the Common Law and Equity and the
diverse legal concepts relevant to the
determination of tax are explained.
The reader is then brought through the
main heads of charge ranging from
conveyance on sale, contracts,
leaseholds, capital duty, reliefs on re-
construction or amalgamation of
companies, mortgage bonds, bills of
exchange and the various reliefs and
exemptions. A separate chapter
devoted to the charge and calculation
of stamp duty is a useful review of
topics dealt with in greater detail
elsewhere in the book.
The revised Heads of Charge are set
out at appendix 9 which contains
useful notes including reference to
deleted provisions (e.g.
Bond/Covenant was deleted by F.A.
1992). The other appendices include
Revenue Statements of Practice, a
variety of revenue/company office
forms, stamp duty regulations,
statutory declaration for companies
relief, exemptions from stamp duties
and EU Capital Duty Directive.
The concept of "Beneficial
360
Ownership" is important not only for
Stamp Duty but also for Capital Gains
Tax and Capital Acquisitions Tax and
the implications of the case of
Tempany v Hynes
will be of particular
interest to the reader. In that case,
Kenny J (O'Higgins C.J.
concurring)
in an obiter to his judgment stated that
a Vendor who signs a contract
becomes a trustee of the beneficial
interest "to the extent only to which
the purchase price is paid"!
Separate chapters are devoted to
stampable contracts and leasehold
interests. Section 59 Contracts (most
commonly good-will) are now
compulsorily stampable; and a
restraint-of-trade agreement is treated
as the sale of good-will. A useful
check-list for agreements for the
purchase of a business is included.
The chapter on leasehold interests
differentiates between a memorandum
recording a rent increase and the
instrument by which the increase is
effected i.e. the lease with the rent
review clause (and did you know that
a rent review clause is stampable at
£1.00!). Leases where the rent is
related to turnover or otherwise
unascertainable are dealt with and we
are reminded that consanguinity relief
does not extend to leases. Case law is
cited in determining what are tenants
fixtures.
There are a number of typographical
errors and the index should be
extended to do justice to the text.
Settlements (and particularly the
valuation of limited interests) were
not dealt with in the depth I would
have expected. Although the book
does not contain footnotes, there is
ample reference to authoritive case
law or relevant legislative provisions
throughout the text which is further
generously illustrated with examples.
The FA 1991 (the 100th anniversary
of the Stamp Act!) put stamp duties
on a mandatory footing. Self-
assessment was also introduced thus
entailing a range of new surcharges
for late payment or under-valuations.
Persons "employed or concerned in or
about the preparation of any
instrument where the facts are not
fully and truly set forth" are liable to
statutory negligence! Practitioners
will always be concerned to advise
their clients on the stamp duty
implications of any document and
how a proposed transaction may be
structured so as to mitigate duty. As
an up to date and lucid synthesis of
the current law of stamp duties I
recommend this book to solicitors and
students alike.
Desmond Rooney
Judi c i al Review: A
Thema t ic Approach
Edited by Brigid Hadfield, Dublin,
Gill and Macmillan, 1995, xxv +
408pp, paperback, IR£25.00
Peter O'Brien,
fifth son of
John
O'Brien
of Elmsvale, County Clare,
was called to the Irish Bar in 1865. He
was a Roman Catholic, married
Annie
Clarke
from Bansha, County
Tipperary, became a Queen's Counsel
in 1880, later third Sergeant, then
Solicitor General and Attorney
General for Ireland. Appointed Lord
Chief Justice of Ireland, he was
created a baronet in 1881 and
subsequently a peer as
Baron O'Brien
of Kilfenora in the early days of this
century.
One day in Tralee, the Lord Chief
Justice decided to attend Mass in state
in his magnificent colourful robes. An
observer noted: "The Lord Chief
Justice walked up the aisle looking for
all the world as though he had called
to leave a card on the Almighty."
Such was (and perhaps still is) the
perceived power of the judiciary. This
is an apt (if slightly irreverent)
introduction to this short notice on