McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2004] FCA 1044

FEDERAL COURT OF AUSTRALIA McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2004] FCA 1044 TAXATION – double tax agreement – deemed permanent establishment – disallowance of notice of objection – disallowance of charter fees for vessels – vessels chartered from Singapore resident company – vessels used in Australia – common ground vessels 'substantial equipment' - whether vessels 'used in [Australia] by … or under contract with the enterprise' – whether charter constituted use – whether contract required use in Australia Income Tax Assessment Act 1936 (Cth) ss 6(1), 51, 51(1), 128B, 128B(2B), 128B(3), 128B(5A), 175A, 221YL, 221YL(2A), 221YL(2G), 221YL(3), 221YL(3A), 221YRA, 221YRA(1A), 221YRA(2) International Tax Agreements Act 1953 (Cth) ss 4, 7, 7A, 17A, 17A(4) Taxation Administration Act 1953 (Cth) Pt IVC Income Tax Regulations 1936 reg 137A The New Shorter Oxford English Dictionary (Clarendon Press, Oxford, 1993) McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation 2003 ATC 4410 cited Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 considered Ryde Municipal council v Macquarie University (1978) 139 CLR 633 considered Attorney-General (ACT) v Commonwealth of Australia (1990) 26 FCR 82 considered Case No. H 106 (1957) 8 TBRD 484 distinguished Thiel v Commissioner of Taxation (1990) 171 CLR 338 referred to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 referred to Agreement Between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, 11 February 1969, entered into force 4 June 1969(as amended by the Protocol of 16 October 1989, entered into force 5 January 1990) Agreement between the Government of Australia and the Government of the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, 17 November 1988, entered into force 28 December 1990 Vienna Convention on the Law of Treaties, 23 May 1969, entered into force 22 January 1974. MCDERMOTT INDUSTRIES (AUST) PTY LTD v COMMISSIONER OF TAXATION W51 of 2002 RD NICHOLSON J 13 AUGUST 2004 PERTH