The Gazette 1995

GAZETTE

DECEMBER 1995

B 0 0 K

R E V I E W S

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.

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.

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

The concept of "Beneficial 360