The Gazette 1978

GAZETTE

OCTOBER 1978

5. Clearance Certificates: Finally I should mention one area of some interest to legal practitioners where the Bill unfortunately does not propose any improvement. As you are aware, it is necessary to obtain a capital gains tax clearance certificate on the sale of certain assets including land in the State where the consideration exceeds £50,000. In 1974 when the Act was introduced relatively few houses were selling for more than £50,000. Since then however the consumer price index has risen by some 80% and the price of houses has probably risen by even more. The result is that it is now necessary to apply for a capital gains tax clearance certificate in a considerable number of routine house sales, where there is in fact no question of any capital gains tax liability. It is a pity that the Bill does not propose to ease the administrative burden on both Inspectors of Taxes and Solicitors by increasing the £50,000 limit to £100,000. Any of the 'excellent lady solicitors' who read the fireside contribution of the anonymous male solicitor in the Gazette of June last must surely have found most indigestible 'food for thought' therein. The article contained one logical contradiction after another. Some sentences made one wonder whether the author was really in earnest or simply a joker suffering from poor circulation — this description referring not to justification of his physical surroundings at time of writing but rather to his movement within the profession. Take line 10 for instance: 'I have working experience with ladies as partners'. An even less presentable example occurs later in the text. Let us assume however that the contributor was bona fide. A merely precursory look at the sequence of his observations reveals their inconsistency. If the motivation of female students is as represented at (b) 'clearly . . . not because of some positive reason but to avoid the possible dead end of an Arts degree', how can the statement at (a) be rationally explained? There we read that female applicants for positions in solicitors' offices frequently have better qualifications or better academic careers than male applicants. The converse of this argument is one the contributor would hardly wish to propose: that men, by implication more positively motivated, are nevertheless incapable of reflecting their motivation in academic grades. If women solicitors work so conscientiously and research as well as one is told at (c), how could the fault at (d) be attributed to them, that they regard 'a job as a job'? Paragraph (d) might have succeeded in downgrading women solicitors, the Civil Service and the Bank in one fell swoop if it were not so patently irrational. Again, paragraphs (c) and (e) conflict. Has our anonymous male solicitor occupied his own off-hours checking out how women solicitors spend their off-hours; or has he conducted a private survey; or is he presenting an unproved assumption, an impression, perhaps a bias of his own? In the well-balanced contribution in the Gazette of March it was observed that women are significantly under-represented at all levels within the legal profession in Ireland as well as within the machinery of justice. It would appear to be a precondition of justice under law 173 WOMEN AND THE LAW Sir,

provides that losses may be set first against the gains which are taxable at the next highest rate, and so on. Similarly the exemption for individuals in respect of the first £500 of gains may be applied first against the gains which are taxable at the highest rate. 3. Capital Gains Tax on Death: The third area in which the Bill proposes to give relief is that of capital gains tax on death. The position up to now has been that death does not constitute a disposal for capital gains tax but that the personal representatives of the deceased and beneficiaries under his will were deemed to acquire the deceased's assets on the date and for the consideration for which he had acquired them. In effect therefore death merely deferred the payment of capital gains tax, as the tax on gains which had accrued during the deceased's lifetime was payable by the personal representatives on a sale of the assets or by the legatees on a subsequent disposal. Under the new Bill personal representatives and legatees will be deemed to have acquired the deceased's assets at their market value on the date of the deceased's death and this applies to all disposals after 6th April 1978. Death will therefore wipe out the tax on gains accrued up to date of death, and personal representatives and legatees will be responsible only for tax on gains accruing after death. A similar concession will be available on the death of a life tenant under a trust when a person becomes absolutely entitled to assets as against a trustee. 4. Disposal within the Family of Business or Farm: The fourth relief proposed by the Bill concerns the disposal within the family of a business or farm. Section 27 of the Capital Gains Tax Act gave relief from capital gains tax in certain circumstances where an individual disposed of certain business assets including farming assets to members of his family. The requirements for the relief were: 1. That the individual should have attained the age of 55 years; 2. That the disposal should be to a child or children of his or to a nephew or niece provided that the nephew or niece had worked substantially on a full- time basis for the period of five years ending with the disposal in carrying on or assisting in carrying on the trade, business or profession and 3. That the assets should be retained by the child, nephew or niece for at least ten years. These basic conditions are unchanged by the Capital Gains Tax (Amendment) Bill. However, the Bill proposes a substantial improvement in the relief by abolishing three additional restrictions which have applied up to now: 1. It used to be necessary for the individual in question to dispose of the whole of his qualifying assets. Relief will now be available whether he disposes of the whole of his qualifying assets or of part only. 2. Full relief was available only if the value of the qualifying asset did not exceed £150,000. This limit is now to be abolished, and relief will be available regardless of the value of the assets transferred. 3. An individual who had been granted relief under Section 27 could not apply also for relief under Section 26, which dealt with the disposal of qualifying assets (not necessarily within the family) for a consideration not exceeding £50,000. It will now be possible to avail of relief under both Sections.