Millar v Commissioner of Taxation [2016] FCAFC 94

FEDERAL COURT OF AUSTRALIA

Millar v Commissioner of Taxation [2016] FCAFC 94 Appeal from: Millar v Commissioner of Taxation [2015] FCA 1104

File number: NSD 1365 of 2015

Judges: LOGAN, PAGONE AND DAVIES JJ

Date of judgment: 4 July 2016

Catchwords: TAXATION – appeal from Administrative Appeals Tribunal affirming respondent's decision to disallow the applicants' objections against amended assessments and notices of assessment of shortfall penalty – where applicants entered purported loan agreement transaction – where loan agreement transaction facilitated by agent – whether transaction was a sham – whether court erred in not confining its assessment of whether sham existed to an inquiry into applicants' subjective intentions – whether imputed intention of agent relevant to disprove sham – whether court erred in affirming respondent's finding that applicants failed to disprove shamming intention TAXATION – liability to remit withholding tax – where applicant had not paid interest withholding tax on interest deemed to have been paid – whether payment occurs when borrower transfers sum in respect of capitalised interest – meaning of "deemed to have been paid" – s 221YK(3) Income Tax Assessment Act 1936 (Cth), s 26-25 Income Tax Assessment Act 1997 (Cth), cl 11-5, Sch 1 Taxation Administration Act 1953 (Cth)

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Income Tax Assessment Act 1936 (Cth) ss 19 (repealed), 221YK(3)(a), 26AFB Income Tax Assessment Act 1997 (Cth) Taxation Administration Act 1953 (Cth) s 14ZZK, Sch 1 ss 11-5, 12-245 Superannuation Industry (Supervision) Regulations 1994 (Cth)