In a decision handed down on Fri 31.8.2012, the Federal Court has:
- dismissed the taxpayers’ application for judicial review of the Commissioner’s decision to issue a formal request to Her Majesty’s Revenue & Customs in the United Kingdom for information. The Court said it did not accept that it was beyond the power of the Commissioner to make a request of the UK and the taxpayers had demonstrated no excess of power by the Commissioner in making the request;
- dismissed the taxpayers’ application for preliminary discovery against the Commissioner as a prospective respondent which would, if granted, “disgorge all requests” made by the ATO to foreign revenue authorities about the taxpayers’ affairs or those of certain nominated individuals; and
- largely dismissed various interlocutory applications to set aside subpoenas and notices to produce.
The Court said the present litigation arose from the issue by the Commissioner of notices of assessment to the various taxpayers on 12 August 2010. Each of the taxpayers is a foreign corporation. For the relevant income years, the Commissioner has assessed the taxpayers for income tax on profits made on the purchase and sale of shares listed on the Australian Stock Exchange.
- The taxpayers contest this, submitting they were not residents for Australian tax purposes.
- Additionally, 2 of the taxpayers – Hua Wang Bank and Bywater Investments – argued that they had no beneficial interest in the shares in question, which they held merely as trustees.
In addition, the Court noted that the taxpayers’ appeals against the disallowance of their objections to the assessments were still before the Court.
(Hua Wang Bank Berhad & Ors v FCT (No 2) [2012] FCA 938, Federal Court, Perram J, 31 August 2012.)
[LTN 169, 31/8]