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A parent earns overseas income which is not included in their UK tax return, as well as UK income. Will the overseas income be treated as income for the purposes of a statutory child support calculation by the Child Maintenance Service (CMS)? If so, does the parent have a duty to disclose the overseas income to the CMS?
Q&As
Where a person is resident in the UK but earns income or makes capital gains in respect of foreign income or assets, they are ordinarily obliged to declare this income via a self-assessment tax return (Part 8 of the Income Tax (Trading and other Income) Act 2005). A Child Maintenance Service (CMS) calculation is calculated, at least initially, on declared earnings. The statutory formula is based upon taxable gross annual income (ie income from employment or self-employment, pensions and some benefits). The CMS obtains this information from HMRC for a given tax year and then uses that figure to calculate the child maintenance liability.
A parent wishes to make a loan to his son, similar to a loan made to their daughter the year before. Both loans are interest free and secured by a first legal charge. Would the second loan made to the son mean that the parent is entering into regulated mortgage contract by way of business?
Q&As
No person may carry on regulated activities ‘by way of business’ in the UK unless he is an authorised person or an exempt person: Financial Services and Markets Act 2000 (FSMA 2000), s 22. The Regulated Activities Order 2001, SI 2001/544 (RAO 2001) sets out six regulated mortgage activities requiring authorisation or exemption if they are carried on in the UK: • arranging regulated mortgage contracts • making arrangements with a view to regulated mortgage contracts • advising on regulated mortgage contracts • entering into a regulated mortgage contract as lender • administering a regulated mortgage contract where that contract is entered into by way of business on or after 31 October 2004; and • agreeing to carry on
A parent, as sole legal and beneficial owner of a dwelling, wishes to give an undivided interest in the property exceeding 50% to their child, who will occupy the property with the parent, to what extent (if at all) can HMRC challenge the percentage of the property given (say 90% gifted and 10% retained)?
Q&As
Section 102B of the Finance Act 1986 (FA 1986) provides that where an individual disposes, by way of gift on or after 9 March 1999, of an undivided share of an interest in land the property given away will not be property subject to a reservation if either subsection (3) or (4) applies throughout the relevant period (as defined in FA 1986, s 102(1)). FA 1986, s 102B(4) applies when: • the donor and the donee occupy the land; and • the donor does not receive any benefit, other than a negligible one, which is provided by or at the expense of the donee for some reason connected
A part-time employee who works four days a week has it stipulated in their contract of employment that all employees are to take three days’ holiday during the employer’s annual Christmas closure. What is the position if the employer’s Christmas closure encompasses a day on which the employee is not contracted to work (ie a day which is their non-working day)? Has the employee been denied a day’s holiday in those circumstances, and if so, what claims, if any, does the employee have, particularly if this practice has been implemented each year since the start of their employment?
Q&As
In considering this question, it will be necessary to consider the terms of the contract of employment of the employee in question. Statutory paid holiday entitlement The right under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833 is to a total of 5.6 weeks' paid annual leave each 'leave year', made up of: • a basic entitlement to a minimum of four weeks' paid annual leave (20 days for a regular full-time worker), and • an additional entitlement to 1.6 weeks' paid annual
A partial intestacy has arisen as a result of a deed of disclaimer by a beneficiary under a Will. Probate of the Will has been applied for and granted. What action is required in order to administer the assets which are the subject of the partial intestacy?
Q&As
A total intestacy arises where the deceased has made no effective provision for the disposition of his property on death but a partial intestacy arises where the deceased has made a Will but for some reason or another a provision of that Will fails and the terms of the Will do not deal with that eventuality. Thus, if a Will leaves a gift to the deceased’s child, Sally, but Sally has predeceased the deceased then the gift fails. The sum given may then fall into residue but if there is no gift of residue or the gift of residue fails then there will be a partial intestacy. In this event, the Will is still the controlling instrument and the estate including that passing on intestacy is administered by the executors without the need
A partner has given notice of a general dissolution of the partnership to the other partner, in which it states a figure to be paid out to the partner upon dissolution. Is the figure stated in the notice binding? There is no partnership agreement.
Q&As
This Q&A assumes that the partnership in question is solvent. The partnership agreement is the usual starting place for establishing how assets and losses are to be distributed and surplus is to be shared between the partners at the end of a partnership. In this case, there is no written partnership agreement, so the Partnership Act 1890 (PA 1890) and common law will apply. A partnership may be dissolved by notice (for details, see Practice Note: Ending a general partnership—dissolution otherwise than by the court). On dissolution of the partnership following service of notice, any surplus assets remaining after payment of debts, liabilities, advances and capital shall be divided among the partners in the same proportion
A partner of a law firm is appointed by order of the court as deputy for an individual who lacks capacity (P). As part of managing P’s affairs, the partner and another solicitor of the same firm are appointed by order of the court to act as trustees in the sale of P’s property (the trustee order). An offer is received on the sale of P’s property but P subsequently dies prior to exchange. P owned the property as tenants in common with his wife. P’s wife predeceased him and her share of the property passed in accordance with the terms of her Will. Did the trustee order terminate automatically upon P’s death, or does it remain effectual so as to enable to trustees to proceed with the sale of the property?
Q&As
The trustee order The partner appointed as deputy (under the provisions of sections 16 and 19 of the Mental Capacity Act 2005 (MCA 2005)) would usually have general authority under the deputyship order to buy and sell property. However, a deputy may not be appointed to exercise
A partnership is in administration, pursuant to a court order. Where one partner owns a residential property and the administrators have a beneficial interest in the property, who can bring the proceedings in relation to the property? Where the individual does not have the means to meet a costs order, is it possible for the defendant to seek security for costs against the administrators, or can the administrators be joined?
Q&As
This Q&A refers to administration of a general partnership. There are a number of reasons why administrators of a partnership might have a beneficial interest in residential premises owned by one of the partners of the partnership. These might include that the residential premises or part of it is a partnership asset, or pursuant to a charge that has been placed on the property, or a primary guarantee that has been secured in such manner (see Practice Notes: Insolvency of general partnerships—administration and Position of partnership members on insolvency). The type of proceedings envisaged against the property will be key to deciding
A partnership of two partners dissolved in 2000. There was no partnership agreement and no record of how the partnership papers were to be owned following dissolution. Partner A died in 2010. Does his executor have a right of ownership in relation to the partnership papers? Or did ownership pass to the surviving partner by virtue of survivorship?
Q&As
The Partnership Act 1890 (PA 1890) is silent on this point and we have been unable to find case law on this specific point. Rights of access to partnership books and papers During the life of a partnership, the general rule is that all partners shall have the right to access the books and papers of the partnership, including the books of account. In practice, such books and papers are kept in a central location, and often within the possession of one partner. What happens on dissolution of a general partnership? In
A party (A) with the landlord's agreement, surrendered a tenancy protected under the Agricultural Holdings Act 1986 in return for a joint tenancy in favour of A and B where section 4(1)(d) of the Agricultural Tenancies Act 1995 is expressed to apply to the tenancy. Where A dies and the joint tenancy passes to B by survivorship, will B's close relatives have the right to succeed B's tenancy on B's death, and if so, would this second succession be the final succession of the tenancy?
Q&As
The Agricultural Tenancies Act 1995 (ATA 1995) introduced Farm Business Tenancies in respect of tenancies of agricultural land or buildings for the purpose of a farm business. A tenancy granted on or after 1 September 1995 where at least part of the tenanted land is farmed throughout the life of the tenancy and either notices have been exchanged confirming that the landlord and the tenant intend it to remain a Farm Business Tenancy throughout, or if no notices were exchanged, the tenancy business is primarily agricultural. Tenancies agreed prior to 1
A party agreed to transfer a property from their sole name into joint names with their cohabitant, who had made no financial contributions to the property. At that time the sole owner was suffering from depression. The parties separated within a few months and the former cohabitant is now seeking half of the equity in the property. Can such a claim be opposed on the basis of duress? How may the sole ownership of the property be restored?
Q&As
In England and Wales property can be held both as legal owners (in effect the person or persons (up to four) in whose name the property is in) and as beneficial owners (the true owners of the property). The legal owners hold the property on trust for the beneficial owners (who may be the same persons). In seeking to determine the beneficial ownership of a domestic residential property, the starting point is that the beneficial ownership will reflect the legal ownership (see, generally, Stack v Dowden and Jones v Kernott) and the onus is on the party
A party commenced divorce proceedings in England and Wales but due to delays, sought and obtained a foreign divorce. They then returned to England and Wales and married their second spouse. The divorce from the first spouse that was commenced in this jurisdiction progressed and was finalised after the party’s second marriage. The second marriage has subsequently broken down and the party wishes to file a divorce petition in England and Wales in relation to the second marriage. Are they entitled to do so?
Q&As
Full and detailed instructions, with supporting documentation, will need to be obtained from the client, as critical information that would impact upon the validity of the marriages, divorce and potential divorce is missing from the question. This Q&A addresses the position as to the recognition of overseas marriage and divorce in England and Wales after IP completion day, ie 11pm (GMT) on 31 December 2020. The first issue to be considered is whether the first marriage is recognised in England and Wales, as it is not indicated in the question whether or not it was celebrated