Oracle Corporation Australia Pty Ltd v Commissioner of Taxation (Stay Application) [2024] FCA 1262

Federal Court of Australia Oracle Corporation Australia Pty Ltd v Commissioner of Taxation (Stay Application) [2024] FCA 1262 NSD 1302 of 2023 File numbers: NSD 1303 of 2023 NSD 1304 of 2023

Judgment of: PERRAM J

Date of judgment: 31 October 2024

Catchwords: PRACTICE AND PROCEDURE – application for stay of proceedings – double taxation treaties – mutual agreement procedure – where Australian Tax Office suspended mutual agreement procedure under Australia-Ireland double taxation treaty – where proceeding concerns meaning of 'royalty' under treaty – where taxpayer instituted domestic proceedings to preserve rights – whether stay of domestic proceedings appropriate under s 23 of Federal Court of Australia Act 1976 (Cth)

Constitution s 75(v) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, Schedule 1 Federal Court of Australia Act 1976 (Cth) s 23 Income Tax Assessment Act 1936 (Cth) ss 6, 128B(2B) International Tax Agreements Act 1953 (Cth) ss 4(2), 11K International Taxation Agreements Act 1953 (Cth) ss 5, 11K Judiciary Act 1903 (Cth) ss 39B(1), (1A)(c) Legislation: Taxation Administration Act 1953 (Cth) s 14ZZN Income tax: royalties - character of payments in respect of software and intellectual property rights (Draft TR 2024/D1) Income tax: royalties - character of receipts in respect of software (Draft TR 2021/D4) Agreement between the Government of Australia and the Government of Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, signed on 31 May 1983, [1983] ATS 25 (entered into force on 21 December 1983) Preamble and arts 3(1)(j)(i)-(ii), 3(3), 13, 13(3), 26, 26(1) Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, signed on 7 June 2017, [2019] ATS 1 (entered into force on 1 May 2019) Preamble and arts 2(1)(a), 16, 16(1), 16(2), 19, 19(1), 19(2), 19(4)(b)(i), 20(2), 23(1)(c) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, [1974] ATS 2 (entered into force 27 January 1980) arts 31, 31(1), 31(3)(b), 32 OECD, 'Commentary on Article 25 Concerning the Mutual Agreement Procedure' in Model Tax Convention on Income and Capital: Condensed Version (OECD Publishing, 2017) [9], [17], [25], [27], [28], [35], [41(b)], [44], [76], [76(a)], [77] OECD, Explanatory Statement to the MLI (adopted on 24 November 2016) [1]-[4], [51], [193], [217] OECD, Making Dispute Resolution Mechanisms More Effective, Action 14 – 2015 Final Report (OECD Publishing, 2015) [4], [51]