Commissioner of Taxation v BHP Billiton Limited [2019] FCAFC 4

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v BHP Billiton Limited [2019] FCAFC 4 Appeal from: MWYS v Commissioner of Taxation (Taxation) [2017] AATA 3037

File number: QUD 27 of 2018

Judges: ALLSOP CJ, DAVIES AND THAWLEY JJ

Date of judgment: 29 January 2019

Catchwords: TAXATION – appeal from Administrative Appeals Tribunal – where respondent (Ltd) is part of a dual-listed company arrangement with a non-resident company (Plc) – where third company (BMAG) is a controlled foreign company of Ltd for the purposes of Part X of the Income Tax Assessment Act 1936 (Cth) – where BMAG derived income offshore from the sale of commodities it purchased from Plc's Australian entities – whether that income of BMAG was "tainted sales income" to be included in the calculation of BMAG's attributable income and hence included in the assessable income of Ltd under Part X of the ITAA 1936 – whether Ltd is an "associate" of Plc (or vice versa) under s 318(2) – whether Ltd is "sufficiently influenced" by Plc (or vice versa) under s 318(6)(b) – whether BMAG is "sufficiently influenced" by Plc and Ltd for the purposes of s 318(2)(d)(i)(B)

Legislation: Corporations Act 2001 (Cth) s 9 1 Income Tax Assessment Act 1936 (Cth) Part X, ss 316(1), 318, 318(2), 318(6), 361(1), 456, 447(1) Income Tax Assessment Act 1997 (Cth) s 995-1 Taxation Administration Act 1953 (Cth) Part IVC Taxation Laws Amendment (Foreign Income) Act 1990 (Cth) Explanatory Memorandum, Taxation Laws Amendment (Foreign Income) Bill 1990 (Cth)

Cases cited: BHP Billiton Finance Ltd v Commissioner of Taxation (2009) 72 ATR 746 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2010) 238 FLR 384 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2011) 81 NSWLR 47 Bywater Investments Ltd v Federal Commissioner of Taxation (2016) 260 CLR 169 Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] Ch 62 Federal Commissioner of Taxation v Peabody (1994) 181 CLR 359 K-Generation Pty Ltd v Liquor Licencing Court (2009) 237 CLR 501 NEAT Domestic Trading Limited v AWB Limited (2003) 216 CLR 277 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 R v Kelly (2004) 218 CLR 216 Sea Shepherd Australia Limited v Commissioner of Taxation (2013) 212 FCR 252 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Ultraframe (UK) Ltd v Fielding [2006] FSR 17 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 Whywait Pty Ltd v Davison [1997] 1 Qd R 225 Yacoub v Federal Commissioner of Taxation (2012) 83 ATR 722