Dow v. Sweeney [2002] ScotCS 346 (09 December 2003)

Dow v. Sweeney [2002] ScotCS 346 (09 December 2003)

In valuing matrimonial property at the relevant date under the Family Law (Scotland) Act 1985, hypothetical capital gains tax liabilities are not to be deducted unless they are actual outstanding debts; the value is the objective market value, not net of contingent personal tax liabilities.

Citation
[2002] ScotCS 346
Parties
Pursuer and Reclaimer: Susan Dow or Sweeney; Defender and Respondent: Patrick Cornelius Sweeney
Jurisdiction
Scotland
Judgment Date
09 December 2003
Procedural Posture
Divorce Action (financial Provision) / Reclaiming Motion (appeal) From Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's approach to deducting hypothetical capital gains tax at valuation stage was erroneous; reclaiming motion continued for further resolution.
Legal Topics
Matrimonial Property Valuation, Capital Gains Tax Deduction, Financial Provision on Divorce, Statutory Interpretation
Family Law Matrimonial Property Valuation Capital Gains Tax Deduction Financial Provision on Divorce Statutory Interpretation

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Parties

Susan Dow or Sweeney

Pursuer and Reclaimer

Patrick Cornelius Sweeney

Defender and Respondent

Procedural Posture

Divorce Action (financial Provision) / Reclaiming Motion (appeal) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether hypothetical capital gains tax liability should be deducted in valuing matrimonial property at the relevant date under the Family Law (Scotland) Act 1985

Ratio Decidendi

In valuing matrimonial property at the relevant date under the Family Law (Scotland) Act 1985, hypothetical capital gains tax liabilities are not to be deducted unless they are actual outstanding debts; the value is the objective market value, not net of contingent personal tax liabilities.

Court Disposition

Lord Ordinary's approach to deducting hypothetical capital gains tax at valuation stage was erroneous; reclaiming motion continued for further resolution.

Orders

  • Continue reclaiming motion to a date to be fixed for resolution of outstanding issues, including cross appeal.