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| Judge Slams ATO Tax Rulings |
by Mary Swire, Tax-News.com, Hong Kong
Friday, March 05, 2010
During a speech to the annual convention of the Taxation Institute of Australia,
Richard Edmonds, a judge of the Federal Court specializing in tax affairs, has
strongly criticized the law central to the recent draft rulings by the Australian
Taxation Office (ATO) on the tax treatment of private equity investments by
foreign investors.
The ATO’s tax determinations in December last year regarded questions
behind its AUD678m (USD610m) claim for tax and penalties following the sale
of the Myer department store group by a private equity group using tiers of
foreign ownership. They have raised doubts in the minds of offshore investors
about the suitability of undertaking business in the Australian capital markets.
Richard Edmonds targeted his comments against the reliance by the ATO in its
rulings on a continued distinction between capital gains and income, in deciding
whether a private equity entity could make an income gain subject to company
tax from the disposal of target assets it had acquired in Australia.
The ATO, in fact, ruled that, if the entity does not have the intention of
becoming a long-term investor to derive dividend income from its shares, and
if it is carrying on a business of restructuring and floating companies, due
to the regularity and repetition and size and scale of its activities, the profit
from the disposal of shares in an Australian company would constitute ordinary
income.
Richard Edmonds pointed out that it was unsatisfactory for private foreign
investors to be subject to a distinction in law between capital and income,
on which the courts themselves have not been able to come to an agreement. He
said that the distinction should be abandoned, and then a final decision should
be taken on whether tax should be paid on foreign investors’ capital gains,
or not.
It is, he considered, a completely unsatisfactory situation at present for
the government and its policy of encouraging foreign private investment. The
present position, he felt, merely encouraged both uncertainty for foreign investors,
as well as “treaty shopping” to use Australia's international tax
agreements network.
He emphasized that his comments were no criticism of the ATO, which has no
choice but to apply the law as it presently was. The ATO’s deadline for
comments on its draft rulings were to have been received by January 29, and
it is expected to make its final determination early in May.
A comprehensive report in our Intelligence Report series
examining tax-sheltering arrangements for investors, including Venture Capital,
Forest Finance and Film Finance in a number of key jurisdictions, is available in the Lowtax Library at http://www.lowtaxlibrary.com/asp/subs_reports.asp
and a description of the report can be seen at
http://www.lowtaxlibrary.com/asp/description_report5.asp
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