BHP Billiton Limited v Commissioner of Taxation [2020] HCA 5

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ

BHP BILLITON LIMITED (NOW NAMED BHP GROUP LIMITED) APPELLANT

AND

COMMISSIONER OF TAXATION RESPONDENT

BHP Billiton Limited v Commissioner of Taxation [2020] HCA 5 Date of Hearing: 5 November 2019 Date of Judgment: 11 March 2020 B28/2019

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D H Bloom QC and E F Wheelahan QC with C M Horan for the appellant (instructed by King & Wood Mallesons)

J O Hmelnitsky SC with D P Hume for the respondent (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

BHP Billiton Limited v Commissioner of Taxation

Income tax (Cth) – Assessable income – Controlled foreign companies – Where Pt X of Income Tax Assessment Act 1936 (Cth) ("Act") attributes income of controlled foreign company ("CFC") to Australian resident taxpayer who has sufficiently substantial interest in it – Where BHP Billiton Marketing AG ("BMAG") CFC of BHP Billiton Ltd ("Ltd") – Where income of BMAG derived from sale of commodities purchased by BMAG from BHP Billiton Plc's ("Plc") Australian entities – Where that income included in assessable income of Ltd if Plc's Australian entities "associates" of BMAG – Where company "associate" of entity under s 318(2) of Act if "sufficiently influenced" by entity – Where s 318(6)(b) provides that company "sufficiently influenced" by entity if accustomed or under obligation or might reasonably be expected to act in accordance with directions, instructions or wishes of entity – Where Ltd and Plc part of dual‑listed company arrangement and operated as if "single unified economic entity" – Whether Plc's Australian entities "associates" of BMAG – Whether Ltd "sufficiently influenced" by Plc – Whether Plc "sufficiently influenced" by Ltd – Whether BMAG "sufficiently influenced" by Plc and Ltd.