Bywater Investments Limited v Commissioner of Taxation [2016] HCA 45

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, NETTLE AND GORDON JJ

Matter No S134/2016

BYWATER INVESTMENTS LIMITED & ORS APPELLANTS

AND

COMMISSIONER OF TAXATION RESPONDENT

Matter No S135/2016

HUA WANG BANK BERHAD APPELLANT

AND

COMMISSIONER OF TAXATION RESPONDENT

Bywater Investments Limited v Commissioner of Taxation Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45 16 November 2016 S134/2016 & S135/2016

ORDER

Matter No S134/2016

Appeal dismissed with costs.

Matter No S135/2016

1. The respondent's summons filed on 2 June 2016 be dismissed.

2. Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

A J Myers QC and F D O'Loughlin with T L Bagley for the appellants in S134/2016 (instructed by Henry Davis York)

N C Hutley SC with T H J Hyde Page for the appellant in S135/2016 (instructed by Henry Davis York)

A H Slater QC with K A Stern SC and J E Jaques for the respondent in both matters (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bywater Investments Limited v Commissioner of Taxation Hua Wang Bank Berhad v Commissioner of Taxation

Taxation – Income tax – Residence of company – Income Tax Assessment Act 1936 (Cth), s 6(1) – Where directors of appellant companies resident abroad – Where meetings of directors of appellants ostensibly held abroad – Where directors acted at direction of Australian resident who controlled appellants and made decisions then implemented by directors – Whether appellants residents of Australia for income tax purposes – Whether "central management and control" of appellants located abroad in place where boards of directors met – Whether, as question of fact and degree, real business and operations of appellants controlled and directed from Australia – Whether functions of appellants' boards of directors usurped – Effect of Esquire Nominees Ltd v Federal Commissioner of Taxation (1972) 129 CLR 177.