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Burton v Commissioner of Taxation, [2019] FCAFC 141-- summary under Subsection 91(4) Summary Under Tax Topics- Income Tax Act- Section 91- Subsection 91(4) credit “in respect of” income only included the taxable ½ of capital gain The taxpayer was an Australian resident who was taxed at the 15% long-term U.S. capital gains rate on his gains on disposal of U.S. oil and gas drilling rights. ... In affirming the decision below to confirm the Commissioner’s denial of a FITO for half of the U.S. tax, Logan J stated (at para. 86): As a matter of ordinary language flowing from the text of s 770-10 … it is only the net capital gain which is … included in Mr Burton’s assessable income. … There is no contextual warrant for construing “included in” as extending to an amount which is used for computation of an amount that is included in assessable income. ...

In finding that this requirement was satisfied, Newey LJ stated (at para. 21): HMRC's case … runs counter to the ordinary meaning of the words "period of ownership". ... A purchaser would, as a matter of ordinary language, be described as "owner" only once the purchase had been completed. … Lord Walker said this on the subject in Jerome v Kelly [2004] UKHL 25 … at paragraph 32: … Neither the seller nor the buyer has unqualified beneficial ownership. ... Newey LJ further found that s. 28 of the TCGA, which provided that the disposal and acquisition of an asset under a non-conditional contract occurred at the time the contract was made, did not “dictate the conclusion that the ‘period of ownership’ of a dwelling-house for the purposes of section … 223 must run from the date of the contract under which it was bought” (para. 25). ...

He stated that "the expectation of privacy with respect to business records … is very low" and that "the information sought … is required in the context of verification activities undertaken … to determine whether the Unnamed Persons have filed their required tax returns. ...

Before reversing the decision below to confirm these reassessments, the Court of Appeal stated (at para. 13, TaxInterpretations translation): The appellant was not required to make out a prima facie case that the 7.89% rate was unreasonable but, rather, that the assumption, on which the respondent relied in assessing it, that the 10% interest rate deducted from its income for the taxation years in issue was not "reasonable in the circumstances," … was prima facie … unsound. Since the 10% rate actually used fell within what the above evidence indicated was a reasonable range, such a prima facie case had been established – so that the onus shifted to the ARQ, which had “failed to demonstrate by a preponderance of the evidence that the 10% interest rate was unreasonable within the meaning of TA section 420.” ...

After referring (at para. 36) to the Marshall v Kerr principle that “because one must treat as real that which is only deemed to be so, one must treat as real the consequences and incidents inevitably flowing from or accompanying that deemed state of affairs, unless prohibited from doing so," Henderson LJ stated (at paras. 39, 42): The unambiguous effect of the deeming in section 15(2) is … that the performance by Mr Fowler of the relevant diving activities is treated as the carrying on by him of a trade, giving rise to trading income …. This treatment entirely displaces the charge to tax on employment income …. ... My approach does not depend to any significant extent on the provisions of article 3(2) … however, I would accept … that the purpose of article 3(2) is to anchor the provisions of the treaty … to the domestic tax law of the Contracting State which is applying the treaty. ...

And the identification of what (if anything) is to be acquired by an outgoing ultimately requires … a comparison of the expected structure of the business after the outgoing with the expected structure but for the outgoing, not with the structure before the outgoing. ... If a once-and-for-all payment is made for the acquisition of an asset of enduring advantage which, once acquired, forms part of the profit-earning structure of the business, the payment is incurred on capital account. … It was necessary for the Trustee to purchase the GMEs in order to continue to carry on its business as it had done up to that point. But the purchase price was a once-and-for-all payment for the acquisition of an asset of enduring advantage – the 18 GMEs – which once acquired formed part of the profit-earning structure of the Trustee's business. ...

. … A repo with a reasonable return in the form of dividends does not defeat the OSP [object, spirit and purpose] of Section 127.6. … KQI is taking advantage of … a mismatch between the tax treatment of its income (the dividends from Kone US are not taxable because they are paid out of its exempt surplus) and its expense (the interest in pays to Kone Canada is deductible). … However, the mismatch arises from the Taxation Act and the policies underlying it …. ...

In finding that s. 231.2(3)(a) was not satisfied, he stated (at paras. 78, 98, TaxInterpretations translation): Where the group is generic without a link to the ITA, and where one can require information without a link to the ITA (as in the case of the commercial customers of a public utility), there is no limitation on a fishing expedition … The invasion of the private life, the right to not be importuned by the state … is not restricted. … The plaintiff has indiscriminately created a group which has no actual factual foundation respecting the administration or enforcement of the ITA for that group. ...

. … [T]he Administration Fee was charged on a one-time only basis and would only be charged if a Loan was not repaid within the specific time frame. ... However, after stating (at para. 22) that he accepted the conclusion in Sherway Centre that “an amount paid as compensation for the use of money for a stipulated period can be said to accrue day-to-day,” McEwen J found that the Discount Fee constituted interest, stating (at para. 45): … [I]t is my view … the Discount Fee meets the three … elements of interest: it is consideration or compensation for the use or retention of money owed to ClearFlow; it related to the principal amount; and, it accrued over time (literally day-to-day). ... In this regard, he stated (at para. 53): Formulas can be confusing and even misleading. … The requirement of an express statement does away with this type of dispute and uncertainty, particularly where in this case there are multiple loans, which may roll-over. ...

Before providing such declaration, Davies J stated, based on the expert testimony (at para. 17): Under European law, Luxembourg law and Dutch law, pursuant to the principle of universal succession … all liabilities of LMGI to tax, including under foreign law (that is, the relevant Australian tax acts), will transfer to LMA by operation of law pursuant to the principle of universal succession upon completion of the merger, as will the rights and obligations of LMGI in respect of such tax liabilities …. ... Regarding her acceptance in this regard of “Luxembourg law and Dutch law [which] apply the same principle of universal succession to cross-border mergers” (para. 22), she stated (at paras. 21- 22): Where a question arises under Australian law as to the status of foreign entity, Australian common law choice of law rules look to the law of incorporation of the entity to determine questions of the entity’s status … Metliss [1958] AC 509 …. ... Moreover, LMA, as the “taxpayer” under s 175A of the Income Tax Assessment Act 1936 (Cth) … will be entitled to object against assessments which have been issued to LMGI, or which are issued to LMA in its place, and will be “the person” entitled to appeal … in relation to objections from those assessments …. ...