Commissioner of Taxation v Lamesa Holdings BV [1997] FCA 785

FEDERAL COURT OF AUSTRALIA INTERNATIONAL TAXATION - whether Netherlands company liable to income tax under s 25(1) of the Income Tax Assessment Act 1936 (Cth) on profits from the sale of shares in an Australian company - whether those profits fall within Art 13 (alienation of property) of the Netherlands-Australia Double Taxation Agreement such that they are excluded from Art 7 (business profits) of that Agreement - consideration of the legislative history of and proper interpretation to be given to Art 13. Income Tax Assessment Act 1936 (Cth), ss 25(1), 160ZO(1) and Part IVA International Tax Agreements Act 1953 (Cth), ss 4, Schedules 10 and 10A Stamp Duties Act 1920 (NSW), Div 30 Immigration Act 1958 (Cth) Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79, applied Applicant A v Minister for Immigration and Ethnic Affairs (1977) 71 ALJR 381, considered Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338, applied Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, referred to In re Hoyles [1911] 1 Ch 179, distinguished R v Williams [1942] AC 541, distinguished Brassard v Smith [1925] AC 371, distinguished Gramophone and Typewriter Ltd v Stanley [1908] 2 KB 89, considered COMMISSIONER OF TAXATION v LAMESA HOLDINGS BV NG 225 of 1997 BURCHETT, HILL & EMMETT JJ SYDNEY 20 August 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 225 of 1997

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMISSIONER OF TAXATION Appellant AND: LAMESA HOLDINGS BV Respondent

JUDGES: BURCHETT, HILL & EMMETT JJ PLACE: SYDNEY DATED: 20 August 1997