Decision impact statement

Federal Commissioner of Taxation v Citigroup Pty Ltd

Court Citation(s):
[2010] FCAFC 61
2011 ATC 20-262
(2011) 83 ATR 305

Venue: Federal Court of Australia
Venue Reference No: NSD 1016/1117 of 2010
Judge Name: Stone, Jessup & Perram JJ
Judgment date: 10 May 2011
Appeals on foot: No
Favourable outcome for NSD 1117 of 2010 (Part IVA appeal).
Unfavourable outcome for NSD 1116 of 2010 (GIC appeal)

Impacted Advice

Relevant Rulings/Determinations:

• Nil

Subject References:
Income Tax
Foreign tax credits
Foreign tax credits arising from tax avoidance scheme
Part IVA scheme
General interest charge
GIC payment date
GIC liability

Précis

Outlines the ATO's response to this case which concerns the application of Part IVA to foreign tax credits (FTC) arising from tax paid in Hong Kong on a bond transaction and whether the taxpayer is liable to pay general interest charge (GIC) on the disallowed FTC.

Brief summary of facts

In essence, the transaction involved a Hong Kong partnership set up by the taxpayer and one of its wholly owned subsidiaries borrowing funds and investing in a 5 year bond issued by Healthcote, a Hong Kong incorporated Citigroup special purpose company.

The partnership then sold the coupons on the bond to the Bank of China (BOC) and returned the gross proceeds on the sale in Hong Kong. Tax was paid in Hong Kong by the partners.

The complex structured transaction enabled BOC to claim a tax deduction in Hong Kong and Citigroup Pty Ltd to return income in Australia against which a foreign tax credit was claimed.

Issues decided by the court

Whether Part IVA applies to cancel the benefit of foreign tax credits claimed by the taxpayer.

If Part IVA does apply, whether the taxpayer is liable to pay the general interest charge (GIC) on the increased tax liability from the date that tax was due and payable.

Part IVA appeal

In NSD 1117 of 2010, the Full Federal Court dismissed the taxpayer's appeal, confirming the decision of the primary judge that Part IVA applies to cancel the benefit of the foreign tax credits claimed by the taxpayer.

The Court concluded that 'obtaining a foreign tax credit ... was more than a condition of the viability of the scheme: it was ultimately the commercial engine which drove the scheme'. The Court was satisfied that the taxpayer's dominant purpose for entering into and carrying out the scheme was to obtain the foreign tax credit generated by the payment of Hong Kong tax on the sale of the interest coupons.

GIC appeal

The Court dismissed the Commissioner's appeal in the s 39B proceedings (NSD 1116 of 2010), confirming the decision of the primary judge that s 204(3) of the Income Tax Assessment Act 1936 (1936 Act) did not impose the general interest charge in the facts of the present case.

The Court accepted the taxpayer's argument that the Commissioner had applied the foreign tax credits to discharge the taxpayer's liability and the taxpayer was deemed to have paid the tax against which the credits were applied. Therefore, there was no tax that 'remained unpaid' within the meaning of s 204(3). The Commissioner's remedy was in section 160AN(5) of the 1936 Act, which entitled him to recover the amount of the excess 'as if it were ... tax due and payable', but did not deem the excess to be tax.

The Court concluded that the statutory scheme is such that, upon the application of a credit to a tax liability, the tax is deemed to have been paid by virtue of section 160AN(3), and the later amendment of the relevant foreign tax credit determination does not undo that. However, the excess credits can be recovered under section 160AN(5).

ATO view of Decision

The Commissioner did not seek special leave to appeal from the decision of the Full Court to the High Court in regards to the GIC. The Court has authoritatively decided that sub-section 204(3) of the 1936 Act did not have operation in the case of an amended foreign tax credits determination.

Administrative Treatment

The foreign tax credits regime under Division 19 of Part III of the 1936 Act, including the procedure of making foreign tax credit determinations, has been repealed from 24 September 2007 (applying to income years commencing on or after 1 July 2008).

It has been replaced by the foreign income tax offset regime, under which a foreign income tax offset directly impacts the amount of income tax payable by an entity.

As such, the decision of the Full Court has no ongoing impact in relation to the imposition of GIC for disallowed foreign income tax offsets.

Implications for ATO precedential documents (Public Rulings & Determinations etc)

Nil

Implications for Law Administration Practice Statements

Nil

Legislative References:
Income Tax Assessment Act 1936
PtIVA
204(3)
160AF(1)
160AI(1)
160AI(2)
160AK
160AIA
160AJA
160AN
160AN(5)