Commissioner of Taxation v Jayasinghe [2017] HCA 26

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ

COMMISSIONER OF TAXATION APPELLANT

AND

KAMAL JAYASINGHE RESPONDENT

Commissioner of Taxation v Jayasinghe [2017] HCA 26 9 August 2017 S275/2016

ORDER

1. Appeal allowed.

2. Set aside the order of the Full Court of the Federal Court of Australia made on 9 June 2016 and in its place order that:

(a) the appeal to that Court be allowed; and

(b) the decision of the Administrative Appeals Tribunal made on 29 June 2015 be set aside and in its place order that the decision under review be affirmed.

On appeal from the Federal Court of Australia

Representation

J O Hmelnitsky SC with T L Phillips for the appellant (instructed by Australian Government Solicitor)

A H Slater QC with L McBride for the respondent (instructed by Balazs Lazanas & Welch LLP)

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

CATCHWORDS

Commissioner of Taxation v Jayasinghe

Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the IOPI Act"), s 6(1)(d)(i) – Whether taxpayer "holds an office in" an international organisation to which the IOPI Act applies – Whether taxpayer entitled to exemption from taxation on salaries and emoluments.

Income tax – Taxation Administration Act 1953 (Cth), Sched 1, s 357-60(1) – Taxation Determination TD 92/153 – Whether Commissioner bound to exempt taxpayer from taxation.

Words and phrases – "expert on mission", "incidents of the relationship", "international organisation", "person who holds an office", "skills and expertise", "specialist services", "terms of engagement".

International Organisations (Privileges and Immunities) Act 1963 (Cth), s 6(1)(d), Fourth Schedule, Pt I. Taxation Administration Act 1953 (Cth), Sched 1, s 357-60(1). United Nations (Privileges and Immunities) Regulations 1986 (Cth), reg 10. Taxation Determination TD 92/153. Convention on the Privileges and Immunities of the United Nations [1949] ATS 3, Art V, s 18.