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Commissioner of Taxation v Resource Capital Fund IV LP Commissioner of Taxation v Resource Capital Fund IV LP, [2019] FCAFC 51-- summary under Paragraph (d) Summary Under Tax Topics- Income Tax Act- Section 248- Subsection 248(1)- Taxable Canadian Property- Paragraph (d) mine assets included processing operations Two Caymans investment LPs (“RCF IV” and RCF V”) whose limited partners were mostly U.S. residents, realized gains from the disposal of shares of significant shareholdings in a TSX-listed Australian corporation (Talison Lithium) which, through a grandchild corporation, held leases in Australia and carried out an operation there of mining lithium ores and processing them. ... This integration can be seen in the way in which Talison Lithium itself described the Greenbushes operations in its “Annual Information Form” …. the foregoing passage [in the AIF] draws no distinction between the activities of extraction, said to be mining by the respondents, and the activities of processing. … … The term “mine”, as a verb, is defined by s 8 of the Mining Act to mean any manner or method of “mining operations” and that term refers to a number of different means of refining a mineral. ...

Commissioner of Taxation v Resource Capital Fund IV LP Commissioner of Taxation v Resource Capital Fund IV LP, [2019] FCAFC 51-- summary under Subparagraph 115(1)(a)(ii) Summary Under Tax Topics- Income Tax Act- Section 115- Subsection 115(1)- Paragraph 115(1)(a)- Subparagraph 115(1)(a)(ii) source of gain was in Australia because the sale occurred pursuant to an Australian Scheme of Arrangement Two Caymans investment LPs, whose limited partners were mostly U.S. residents, realized income-account gains from the disposal, pursuant to an Australian Scheme of Arrangement, of shares of significant shareholdings in a TSX-listed Australian corporation (Talison Lithium) which, through a grandchild corporation, held mining leases in Australia and carried out an operation there of mining lithium ores and processing them. ... In affirming this finding, the Full Court stated (at paras. 64-65): What bound the respondents to dispose of their shares and interests in Talison Lithium was not the entry into a contract of sale overseas but the convening of the scheme meeting, the approval at that meeting of the scheme of arrangement, the approval of that scheme by the Court, and the lodging of the order of the Court with the Australian Securities and Investment Commission …. ... That arrangement took place in Australia, and accordingly, because the scheme was the “proximate” origin of the profits earned, and because of the other connections with Australia summarised by the primary judge … including the location of the mine in Western Australia, those profits had a source in Australia. ...

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51-- summary under Article 13 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 13 exclusion in Art. 13 of Aust. ... Pagone J went on to find that (based on Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597) that “consists of” language, such as that quoted above “was intended to assimilate as realty only one tier of companies rather than numerous tiers,” so that “the alienation by the partners of RCF IV and RCF V of the shares in Talison Minerals would not come within the terms of Article 13 consistently with the reasoning in Lamesa ” (para. 83). ... XIII exclusion to dispositions of shares of companies “the value of whose assets is wholly or principally attributable, whether directly, or indirectly through one or more interposed companies or other entities, to … real property or interests”. ...

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51-- summary under Subparagraph 115(1)(a)(ii) Summary Under Tax Topics- Income Tax Act- Section 115- Subsection 115(1)- Paragraph 115(1)(a)- Subparagraph 115(1)(a)(ii) gains of a NR PE fund from disposals of Australian share investments that were managed in part in Australia were derived from Australia Two Caymans investment LPs (“RCF IV” and RCF V”) whose limited partners were mostly U.S. residents, realized gains from the disposal of shares of significant shareholdings in a TSX-listed Australian corporation (Talison Lithium) which, through a grandchild corporation, held mining leases in Australia and carried out an operation there of mining lithium ores and processing them. ... In further finding that such gains were income derived from an Australian source, Pagone J first noted (at para. 52) the RCF LPs’ submissions that significant decisions were made outside Australia by the general partner’s investment committee and that the manager was outside Australia, and then stated (at para. 53): The fact that the business and assets were in Australia might not of itself be sufficient to make Australia the ultimate source of the gain derived upon the disposal of the shares, but the location in Australia of the business and assets, and the nature and extent of the business and assets, occasioned substantial activities in Australia that were an integral part of the investment, its management, and its ultimate profitable disposal. … An element of the investment strategy of the RCF IV and RCF V partnerships was for members of the RCF Management team to occupy positions on boards of the companies in which RCF invested to guide management and to contribute to an increase in the value of the investments which were intended to be sold at a profit. That function was performed by employees in the Perth office …. Respecting the statutory reference to income derived “directly or indirectly,” he stated (at para. 51): The Commissioner submitted that the phrase directs attention “not merely to the proximate origin of the income, but also to those acts or matters which constitute contributory causes to the generation of income”, however, the adverbial phrase quantifies the word “derived” in the section rather than the word “source”. ...

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51-- summary under Paragraph (d) Summary Under Tax Topics- Income Tax Act- Section 248- Subsection 248(1)- Taxable Canadian Property- Paragraph (d) shares of lithium mining and processing company were derived principally from the processing rather than mining operation and, thus, were not taxable Australian real property Two Caymans investment LPs (“RCF IV” and RCF V”) whose limited partners were mostly U.S. residents, realized gains from the disposal of significant shareholdings in a TSX-listed Australian corporation (Talison Lithium) which, through a grandchild corporation, held mining leases in Australia and carried out an operation there of mining lithium ores and processing them. ... Convention because of the exclusion in Art. 13 for dispositions of (deemed) real property situated in Australia, given s. 3A(1) of the International Tax Agreements Act 1953 (Cth), which extended the application of the Art. 13 exclusion to dispositions of shares of companies “the value of whose assets is wholly or principally attributable, whether directly, or indirectly through one or more interposed companies or other entities, to … real property or interests”. ... It follows that on this basis of assessment of the RCF IV and RCF V partners there is to be excluded from the taxable value of the capital gain, the value attributable to the general purpose leases, the miscellaneous licence and the plants used in the processing operations rather than in the mining. … Whether the interests of the applicants in Talison Lithium also passed the principal asset test, for the purposes of s 855-25(1)(b), requires consideration of whether 50% or more of the market value of the assets of Talison Lithium were attributable to Australian real property. ...

Energy Resources of Australia Ltd., 94 ATC 4923, [1994] FCA 924 (Full Fed. ... In finding that foreign exchange gains or losses were realized by the taxpayer on capital account, Hill J. stated (p. 4954): "... ...

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51-- summary under Shares Summary Under Tax Topics- Income Tax Act- Section 9- Capital Gain vs. ... Pagone J stated (at para. 50): [T]he receipt will bear the stamp of income where the taxpayer, as here, did have the purpose of making profit from the ultimate disposal of investments. … Profitable realisation of the investment by disposal was an objective of the investment by the RCF partnerships from the beginning. ...

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51-- summary under Article 3 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 3 each U.S. ... The taxable activity in each case was an investment in … Talison Lithium which was carried out on their behalf by their respective General Partners. ...

Dare Human Resources Corporation v. Ontario (Revenue), 2019 ONCA 549-- summary under Employer Summary Under Tax Topics- Income Tax Regulations- Regulation 100- Subsection 100(1)- Employer placement agencies were the workers’ employer The appellants were placement agencies who supplied temporary workers to the Public Service of Canada and federal agencies. ... The appeal judge did not … fail to consider any relevant factor. ...

Resource Capital Fund III LP v. Commissioner of Taxation, [2013] FCA 363 (Fed. ... In reaching this conclusion, he found that: the plant and equipment, to the extent it was fixtures, was fixtures to the land (which was not owned by SBM and, therefore, was not TARP of SBM) and not to its mining rights (which were TARP): para. 112 the mining information of SBM (which was not TARP) had a substantial value in light of the substantial exploration cost that would be required to reproduce this information, as well as the substantial present value of the mining production that would be foregone during the three to five year exploration and evaluation process (para. 105, 132) the question of what a hypothetical purchaser would pay for the mining information, being anything in the range of nil (being what it could be sold for by itself) to the full replacement cost (including foregone production as noted above), was indeterminate – however, "the fair valuation is one which shares equally between the holder, and the potential user, of the relevant asset the benefit to the user of immediate acquisition of the asset" (para. 157, see also 106, 129), so that the mining information was valued at the mid-point between the two extremes similarly, the plant and equipment should be valued "by dividing the notional ‘bargaining zone' equally" (para. 159, see also 107) between its replacement cost and its minimal scrap value it was not necessary to address whether any value should be assigned to goodwill as the SBM non-TARP assets were more valuable even without doing so it was inappropriate to add an asset value representing the excess of the market capitalization of SBM (which was a listed company) over its discounted cash flow valuation (para. 111, 121) ...