The Gazette 1977

GAZETTE

OCTOBER- 1977

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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. 160

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.

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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.