Consequences Of Purchasing A Property Involving A Gift

Is Revenue Looking Your Gift Horse In The Mouth?

Important information for those receiving a gift towards the purchase of their property

If you’re lucky enough to be receiving a gift towards the purchase of your new home or property it is very important that you read the following from start to finish. It contains valuable information in relation to tax implications and other matters which may arise as a result of your windfall.

My parents are giving me €100,000 towards the purchase of my new home which is costing €500,000.  Am I not entitled to receive a straightforward gift from my own family to help us out?

If you are buying your property as sole owner and the gift is from parent to child, then, assuming you have received no prior gifts or inheritances from your parents, €100,000 falls well under the current tax-free threshold amount for gifts/inheritances between parents and children (otherwise known as capital acquisitions tax – CAT) and there will be no CAT payable by you. However, you are obliged to inform Revenue, as any gift to you during your parents’ lifetime will be deducted from your inheritance tax-free allowance on their death. There are exceptions to this however, for example when a certain amount of time has elapsed since the gift was made. Please see HERE for tax thresholds and other information in relation to CAT.

My spouse is purchasing this property jointly with me. Isn’t it up to me whether or not my spouse will benefit from the gift?

Unfortunately, there really is no such thing as a free lunch! As potential joint owners, your spouse will own 50% of the property you are purchasing. Consequently, in the case described above, your spouse would be considered to be receiving the benefit of 50% of the gift from your parents (i.e. €50,000).

Despite being their daughter or son-in-law, your spouse is considered to be a “stranger in blood” to your parents. This status falls under the Group C threshold – currently only €16,250.

Therefore, subject to the small gift exemption which may apply to the gift, your spouse will be liable for tax (currently at the rate of 33%) on the balance, i.e:

€50,000, less threshold of €16,250 = €33,750.

This figure equates to a whopping tax bill of €11,137.50 for your spouse which no doubt would be far better spent on your new home.

If, however, your spouse can prove that he or she contributed an equal amount to the gift out of their own money directly towards the purchase, then this could be used to offset your gift and the property can be owned on a 50/50 joint tenancy basis. Your spouse would however have to demonstrate this by corresponding banking transactions.

But we are a married couple – isn’t any gift between us tax-free?

In the normal course of events, a married couple can “gift” any amount of money or assets from one to another without any liability to tax. In this case, however, Revenue will view the gift as being a direct benefit from parent to daughter or son-in-law.  It is only after a period of three years following the gift that a spouse may benefit under a husband to wife scenario. This is called the rule against gift splitting.

Therefore, if the gift was given to you say two years ago and you were to wait a further year before purchasing a house together, in that case, there would be no tax liability for your spouse.

We want to buy our house now – is there anything we can do to avoid a large tax bill?

Yes.  You can opt to purchase your property as “tenants-in-common” (as opposed to a joint tenancy) in proportionate shares which take into account the percentage of the purchase price constituted by the gift. As tenants in common, this does however mean that, in theory, either party is entitled to dispose of their share of the property either by selling it or bequeathing it to a third party under their Will without your consent. This means that if you do acquire the property as tenants in common it would be extremely important for each of you to make a Will specifically stating how your share in the property should pass to the surviving owner on your death.

After the three year period has elapsed, as you are married, you will then be entitled to transfer the property into your joint names as joint tenants with no liability to capital acquisitions tax or capital gains tax, assuming you are both living together. Once registered as such in the Land Registry, on the death of either spouse the other will automatically inherit the deceased’s share with no tax consequences and sale of the property cannot take place without the other’s consent under any circumstances.

How is the tenancy in common calculated?

Using the figures referred to above, your spouse’s €50,000 share equates to 10% of the purchase price. Therefore, ownership of the property as tenants-in-common would be on a 45%/55% basis in favour of the spouse who received the gift.

Read more about this topic HERE.

We are co-habitants and may or may not marry in the future – what about us?

As co-habitants you are unfortunately currently still considered to be “strangers in blood” in the eyes of the Revenue. When purchasing your property, you can however avail of the “tenants-in-common” scenario described above.

I have received the gift from somebody other than a parent – what then?

This will undoubtedly result in significant tax liability for you as the direct beneficiary. Please refer to the Revenue’s website for further information. As regards your spouse, however, the situation as outlined above will remain the same.

Can we not just accept the gift as a “loan” and avoid all of this?

If you decide to treat it as a personal loan and repay the money to your parents/ benefactor over a period of time, then yes, it can be considered a loan. However, if you are availing of a mortgage to purchase your property, your lender will require evidence of how you received the money and how you intend paying it back without jeopardising your ability to discharge the monthly mortgage payments. Sometimes, a lender will require a commitment from you that the loan from your parents will not be paid back until after the mortgage loan has been repaid in full.

How do we go about transferring the property into joint names after the three year period is up?

This is a fairly simple and inexpensive matter which can be done by your solicitor. A deed will be drawn up, transferring the property between you both as joint tenants by way of “natural love and affection” and registering the document in the Land Registry. As you are spouses, there is no stamp duty and no registration fees are payable to the Land Registry. Furthermore, as set out above, there will be no capital gains tax on the transfer of the property provided you and your spouse are living together under the same roof at the time of the transfer.

My parents are selling their house to me/us at a reduced price – does this also constitute a gift?

Yes, it does and it is treated the same as if it were a cash advance. A valuation of the property must be carried out by a registered professional at the time of the sale stating the full market value at that date. You are entitled to obtain a number of valuations and select the lowest value applied to the property, assuming it is not inordinately low. The difference between the sale price and the valuation constitutes the gift amount. It should be also be noted that stamp duty is payable on the full market value.

So now that we have got over that bombshell, is there anything else we need to know about when receiving a gift towards purchasing our property?

Yes!  There is one further matter which relates to the title to your property which must be addressed.

If you are availing of a mortgage, your benefactor (the person or persons giving the gift) is obliged to sign a Deed of Confirmation. This document confirms that they will have absolutely no right over or interest in the property, either real or financial on foot of their gift to you. In other words, they cannot at some point in the future say “hey, wait a minute, I gave you €100,000 towards buying that house – I own one-fifth of it” (or something along those lines!).

As part of our undertaking to your lender, we must be able to give them comfort that when it comes to the title to your property, you and your spouse as mortgagors are the only persons entitled to ownership and, in the unlikely event that the lender were to re-possess the property there will be nothing (or nobody) impeding this.

A Deed of Confirmation is not the same as a gift letter (which will likely already have been signed by your parents). It will require attendance by your parent/s at the office of an independent solicitor who will witness the signing of the Deed and provide us with a letter confirming that independent legal advice was given. If the gift is coming from one parent only then their spouse will be required to sign a consent to the giving of the gift.

This will attract fees for you/your parents which will need to be borne in mind. You should advise your benefactor of this requirement and satisfy yourself that they are agreeable to do so before you sign contracts to purchase your property.

THE ABOVE IS A GUIDE ONLY – WE ARE NOT TAX ADVISORS.
Please note whilst every effort has been made to ensure the accuracy of the contents of the above article it is not to be construed as legal or taxation advice nor does it purport to be so. Specific tailored advice is required for every specific scenario. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Consequences Of Purchasing A Property Involving A Gift”, please contact Wendy Scales, Legal Executive at Amorys Solicitors wendy@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Amorys Business Continuity Plan – Covid-19 Pandemic

The Irish Government has introduced unprecedented measures in order to protect the safety of our population amid the current outbreak of coronavirus COVID-19.  Within these measures, the government has advised that individuals where possible should work from home.

With this advice in mind, we have implemented our business continuity plans to ensure we can continue to provide a full service for our clients.  The safety and wellbeing of all our staff, clients, contacts and other third parties, is our main priority.

Our Amorys team remains committed to our clients and to the delivery of a first-class legal service.  While our office is currently closed we will continue to provide our services remotely.

As a service-focused firm, we have the systems and flexibility to continue to meet your legal requirements especially in challenging times like these.

We will continue to operate our office line on 01-2135940.  If you have any queries or concerns, please call or email your contact solicitor directly:

sharon@amoryssolicitors.com

brian@amoryssolicitors.com

deirdre@amoryssolicitors.com

daragh@amoryssolicitors.com

wendy@amoryssolicitors.com

rachel@amoryssolicitors.com

patricia@amoryssolicitors.com

As always, our team are available to support you and your business.

Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Amorys Business Continuity Plan – Covid-19 Pandemic”, please contact Daragh Burke, Amorys Solicitors daragh@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

The Mediation Act 2017 and Litigation in Ireland

Many of the provisions of the Mediation Act 2017 (“the Act”) which became effective on 1st January 2018, placed already existing practices in relation to mediation on a statutory footing. However, the Act’s statutory promotion of mediation as a viable, effective and efficient alternative to court proceedings is no doubt a welcome introduction for litigants in Ireland.

Whilst before the Mediation Act 2017 came into force it was the practice of many if not most solicitors and barristers to advise clients of the benefits and mechanics of mediation as an alternative to court proceedings, there is now a statutory obligation on them to do so. Under the Mediation Act 2017, the High Court now has the power to stay or halt proceedings where a solicitor has not confirmed to the Court by way of a certificate that the Plaintiff has been advised of mediation in the terms prescribed by section 14 of the Act. The Act, as it currently stands, does not require solicitors acting on behalf of defendants to file a similar statutory declaration although they will no doubt advise their clients of the benefits of mediation in practice given the risks of the making of adverse costs orders outlined below.

It has always been open to a Court to consider a party’s conduct in litigation (in particular in relation to mediation) when making costs orders (order 99 of the Rules of the Superior Courts) too but the Act further highlights judicial scrutiny in this area. There is arguably therefore additional risk for a defendant that s/he could be held liable in full or in part for a plaintiff’s costs of litigation, should it decline mediation. Section 21 of the Mediation Act 2017 further strengthens “judicial discretion” to take into account “any unreasonable refusal or failure” of a party to consider or attend mediation when awarding costs at the conclusion of court proceedings. This is no doubt a welcome introduction for litigants who may not have sufficient resources for lengthy and protracted court proceedings.

There is no statutory obligation on parties to agree to mediation but if parties to a dispute do so, the Act provides that a ‘Mediation Agreement’ is to be signed by both parties specifically dealing with the appointment of a mediator, payment of his/her costs, the place and time of the mediation and the way in which it is to be conducted and explicitly acknowledging that the mediation and all reports, notes and records resulting therefrom are confidential and cannot be used in court proceedings. The benefit of the Mediation Agreement is that it provides certainty for the parties thereto and a clear timeline for the way in which their dispute will be dealt with. The confidentiality requirement can also be attractive for many commercial and family law litigants.

The Act further codifies the role of a mediator and provides for the introduction of Codes of Practice for the conduct of mediation by qualified mediators. A mediator who subscribes to a particular code of conduct must provide a copy of the code to each party involved in the mediation.  At present there are no codes of conduct prescribed for mediators in Ireland and mediators are unregulated here.  The Law Society of Ireland recommended in its Submissions at the Committee Stage of the bill that the Act would go further than it has in this regard but the opportunity was not seised at that stage.

A Mediation Agreement, when signed by all parties to a dispute has the effect of stopping the time within which to bring court proceedings under the Statute of Limitations Act until 30 days after the mediation process has terminated. This will be a welcome introduction for litigants some of whom who prior to the introduction of the Act, submitted to mediation at a stage when due to time constraints, it was necessary to issue court proceedings in tandem with the mediation process resulting in two ‘sets of costs’ for both parties.  The suspension of the statute of limitations during the mediation process is therefore extremely beneficial for parties to a dispute.

The new provisions in the Act requiring parties to consider mediation should be helpful in removing what may be seen as an obstacle to mediation or negotiation in practice. There can be occasions where parties do not want to propose mediation or negotiation as it may be misinterpreted as a sign of weakness. This new statutory obligation on solicitors, including importantly in house solicitors, to inform clients of the mediation process and the requirement to consider it before issuing proceedings may make parties less concerned about this possibility and should offer a feasible and cost-effective alternative to court proceedings.

The Mediation Bill 2017 was passed by the Houses of the Oireachtas and enacted on October 2 2017. On December 13 2017 the Minister for Justice and Equality signed the Commencement Order of the Mediation Act 2017 and all sections were commenced as of January 1 2018.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “The Mediation Act 2017”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

***Competition*** Win 2 tickets to Mario Rosenstock at the Gaiety Theatre, Dublin

***Competition***

Win Tickets to Mario Rosenstock

We have two sets of 2 tickets to Mario Rosenstock, “In Your Face!” at The Gaiety Theatre this Saturday night, 26th May 2018 to give to two of our Facebook, Twitter and LinkedIn followers. To be in with a chance of winning, like and/or follow us on Facebook, Twitter and LinkedIn and send your answer to the below question to info@amoryssolicitors.com.

What word is missing from the following sentence?

Amorys Solicitors is a boutique commercial and private client law firm with expertise in property, employment, company & corporate law, family law and personal injury litigation.

Our Twitter Page: https://twitter.com/AmorysSolrs

Our Facebook Page: https://www.facebook.com/AmorysSolicitors/

Our LinkedIn Page: https://www.linkedin.com/company/amorys-solicitors/

Our website : https://amoryssolicitors.com

The winners will be chosen at random and announced on Facebook at 9 am this Thursday,24th May 2018.

*Please note there must be a minimum of 14 entrants for this competition to run.

The personal information that you provide us in this competition will be used solely for the purposes of choosing winners at random.  At the end of the competition, you will be provided with an option to have your information erased completely or to join our mailing list for our quarterly newsletter.  Further detail as to how we treat personal data received from third parties through our website is set out in our data protection and privacy statement.

Best of luck!*

Amorys Competition 2 tickets to Mario Rosenstock Dublin

Sharon Scally named Sole Principal of the Year at the Irish Law Awards 2018

Sharon Scally has been named Dublin Sole Principal of the Year at the annual Irish Law Awards.

Over 90 firms, practitioners and in-house teams attended last Friday’s ceremony which was opened by Minister for Justice and Equality Charlie Flanagan and hosted by RTÉ presenter Miriam O’Callaghan.

Now in its seventh year, the awards recognise excellence and achievement in the Irish legal industry and profession throughout Ireland.

Commenting on the awards Sharon Scally said: “Winning Dublin Sole Principal of the Year was very much a team effort.  We are thrilled for the recognition that this award represents in the Dublin legal community.  I would like to acknowledge the hard work of our team and the support of our clients and friends.  We will continue to ensure our clients receive the best legal advice and guidance available.” 

Katherine O’Riordan, Event Director said, “The Irish Law Awards has become a huge success over the past 6 years. The event has grown exponentially and this year we are delighted to have the support of Clinch Wealth Management in recognizing excellence within the legal sector. The standard this year was exceptionally high.”

Amorys was shortlisted in three other categories: Employment Law Firm of the Year; Excellence in Client Service; and Dublin Family Law Firm of the Year. Wendy O’Brien, legal executive was also shortlisted as a finalist for Legal Executive of the Year.

Sharon Scally and a small number of local ratepayers in Sandyford were instrumental in establishing a Business Improvement District scheme within the Sandyford Business District in 2017. Sharon Scally is the current chairperson of Sandyford BID CLG which has as its aims to strengthen and promote ties within the local business community, improve infrastructure and promote the Sandyford Business District as the premier destination in Ireland for talent and investment.

The Awards reception and proceedings were held at the Clayton Hotel, Burlington Road, Dublin 4 and charity partners for 2018 include the Solicitors’ Benevolent Association, The Barristers’ Benevolent Society and the Peter McVerry Trust.  Further information about the awards and other winners are available at www.irishlawawards.ie .

Sharon Scally Winner at the Irish Law Awards 2018

Amorys Solicitors Team - Winner at the Irish Law Awards 2018

Photographer Paul Sherwood paul@sherwood.ie; 087 230 9096 www.sherwood.ie
Clinch Wealth Management Irish Law Awards, Clayton Hotel, Burlington Road, Dublin. May 2018.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Sharon Scally named Sole Principal of the Year at the Irish Law Awards 2018”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

What To Bring To Your First Meeting With Your Solicitor

EMPLOYMENT LAW

CLAIMS FOR UNFAIR DISMISSAL OR REDUNDANCY

WHAT TO BRING TO YOUR FIRST MEETING WITH YOUR SOLICITOR

Employees who have been dismissed may require legal advice as to whether or not grounds exist to support a claim against their previous employer under unfair dismissal, equality or legislation applicable to their circumstances.

It is important for a claimant to decide whether or not to make a claim against his/her employer at an early stage.  Aside from the time and emotional investment of making such a claim, there are strict time limits within which such claims must be made (usually 6 months).  In order to get the most out of your meeting and for your solicitor to advise you fully, s/he will need to know the full circumstances surrounding the termination of your employment and will need copies of all relevant documentation.

Whilst every case is different, generally speaking, your solicitor will need the following documents to advise you as to whether or not you have a claim:

  1. A brief summary of the history of your employment, including a list of individuals involved and a note of their role within the organisation;
  1. Your original employment contract and any contracts amending same;
  1. Most recent employment law handbook is given to employees;
  1. Your employer’s disciplinary procedure (if not included at No. 2 above);
  1. A copy of all warning letters, reports and findings of investigations;
  1. Copies of all company policies;
  1. If your claim relates to bullying and harassment, copies of all relevant emails; reports/findings from the investigation;
  1. If you suffered a physical injury from any event, copies of all sick notes, medical reports and x-rays.

If you have a soft copy of the documents, we would suggest that you forward them to your solicitor by email in advance of the meeting so that s/he can be fully prepared.

It is important to note it often happens that employees do not have all of the above documents at the time of an initial consultation but that they require legal advice urgently due to the time limits involved.  In such circumstances, if your solicitor is of the view from what you say that you do, in fact, have a claim, s/he could assist you in filing a complaint form in the Workplace Relations Commission to ‘stop the time’ from running which would give you time to obtain all relevant documents.  It is always open to a claimant to withdraw his/her claim prior to a hearing at no risk of having to pay the employer’s legal costs.

Amorys Solicitors has more than 30 years’ experience practising the employment law and successfully represented the plaintiff in the seminal case of McGrath-V-Trintech which established the right in the common law of an ex-employee to claim damages from an employer for psychiatric harm suffered due to stress at work.

If you would like to arrange an initial consultation to discuss whether or not grounds exist for a claim against your employer under unfair dismissal or equality legislation, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

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