Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Cable & Wireless Australia & Pacific Holding BV (in liquidatie) v Commissioner of Taxation [2016] FCA 78 File number: NSD 1165 of 2014
Judge: PAGONE J
Date of judgment: 11 February 2016
Catchwords: TAXATION – share buy-back – dividend withholding tax payable by non-resident – part of off-market purchase price deemed to be dividend – part of purchase price debited against amounts standing to the credit of the share capital account of the company is not dividend – application for refund of withholding tax claimed to have been paid in error – share capital account – buy-back reserve account – whether record of transaction into which company had entered in relation to share capital – whether record of financial position of the company in relation to its share capital – substance and form of share buy-back transaction
Legislation: Corporations Act 2001 (Cth) Div 2J.1, 2M.2, ss 257E, 257H, 258E, 286, 1308 Income Tax Assessment Act 1936 (Cth) ss 6D, 159GZZZP Taxation Administration Act 1953 (Cth) Sch 1 s 18-70 Explanatory Memorandum to the Taxation Laws Amendment Bill (No 3) 1990 (Cth) Statement of Accounting Concepts SAC 4, Definition and Recognition of the Elements of Financial Statements (March 1995) Australian Accounting Standards Board Urgent Issues Group Consensus View UIG 22, Accounting for the Buy-Back of No Par Value Shares (November 1998)
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Commissioner of Taxation v Uther (1965) 112 CLR 630 Commissioner of Taxation (NSW) v Stevenson (1937) 59 CLR 80 Consolidated Media Holdings Ltd v Commissioner of Taxation (2011) 82 ACSR 637 Guinness v Land Corporation of Ireland (1882) 22 Ch D 349 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 Re The Swan Brewery Co Ltd (1976) 3 ACLR 164 Trevor v Whitworth (1887) 12 App Cas 409 Davies PL and Worthington S, Gower and Davies' Principles of Modern Company Law (9th, 2012) Sweet & Maxwell Review of the Taxation Treatment of Off-Market Share Buy-Backs (June 2008) Report to the Treasurer, Board of Taxation
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