Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Commissioner of Taxation v Resource Capital Fund III LP [2014] FCAFC 37 Citation: Commissioner of Taxation v Resource Capital Fund III LP [2014] FCAFC 37
Appeal from: Resource Capital Fund III LP v Commissioner of Taxation [2013] FCA 363
Parties: COMMISSIONER OF TAXATION v RESOURCE CAPITAL FUND III LP
File number: NSD 842 of 2013
Judges: MIDDLETON, ROBERTSON AND dAVIES JJ
Date of judgment: 3 April 2014
Catchwords: DOUBLE TAXATION TREATIES – United States Double Taxation Convention – taxation of gains derived from disposition of shares in a company owning real property (mining tenements) situated in Australia by a limited partnership formed outside both Australia and the United States but comprised of limited partners being predominantly United States residents – whether gain derived by limited partnership or limited partners for the purpose of the Convention INCOME TAX – Div 855 of Pt 4-5 of Income Tax Assessment Act 1997 (Cth) – whether capital gains derived by a foreign resident to be disregarded – whether "principal asset test" in s 855-30 passed – consideration of what is to be valued and compared as the criterion for passing the test
Legislation: Income Tax Assessment Act 1936 (Cth) s 94H Income Tax Assessment Act 1997 (Cth) ss 855-5, 855-10, 855-15, 855-20, 855-25, 855-30 International Tax Agreements Act 1953 (Cth) s 4(2) Taxation Administration Act 1953 (Cth) Sch 1, s 357-60
Cases cited: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 Commissioner of State Taxation (WA) v Nischu Pty Ltd (1991) 4 WAR 437 Commonwealth Minister for Justice v Adamas (2013) 304 ALR 305 Intoll Management Pty Ltd v Federal Commissioner of Taxation (2012) 208 FCR 115 Leichhardt Municipal Council v Roads and Traffic Authority of New South Wales [2006] NSWCA 353; (2006) 149 LGERA 439 Spencer v Commonwealth (1907) 5 CLR 418 Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259
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