The Gazette 1988

SEPTEMBER 1988

GAZETTE

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 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, The High Court Practice Direction

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.

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.

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