Decision Impact Statement
British American Tobacco Australia Services Ltd v. Federal Commissioner of Taxation
 FCAFC 130
2009 ATC 20-155
80 ATR 813
Venue: Federal Court of Australia (Full Court)
Venue Reference No: NSD 80 of 2010
Judge Name: Dowsett, Jessup & Gordon JJ
Judgment date: 10 November 2010 (Full Federal Court)
8 April 2011 (Special leave hearing)
Appeals on foot: No.
The taxpayer's application for Special leave to the High Court was refused.
Administrative Treatment (Implication on current Public Rulings and Determinations)
Impacted Practice Statements:
PS LA 2005/24
Capital Gains Tax
Use of Capital Losses
Definition of Scheme
Dominant Purpose of Entering Scheme
Outlines the ATO response to this case which concerned the application of Part IVA of the Income Tax Assessment Act 1936 to the particular arrangement entered into by the taxpayer.
Brief Summary of Facts
In 1999, there was a global merger of the British American Tobacco ('BAT') group and the Rothmans International ('RI') group. Before the merger could proceed in Australia, the ACCC required disposal of certain tobacco brands by the taxpayer (a company in the BAT group) to a third party to mitigate the effect of the merger on competition in the Australian market.
In April 1999, the BAT group determined that it would sell 9 brands to the Imperial Tobacco Group and gave relevant undertakings to the ACCC in June 1999. However, the actual sale was not to occur until immediately after the merger of the BAT and RI groups which occurred in September 1999. At this later time, the taxpayer transferred ownership of the brands to a company within the RI group which immediately on-sold the same brands for the same consideration to Imperial Tobacco (the third party).
The taxpayer did not include an amount in its assessable income in respect of the sale of the brand assets to the RI company because of CGT rollover provisions that became available upon the event of the merger. The subsequent capital gains made by the RI company on the sale of the same assets to Imperial Tobacco were reduced to nil through the application of net capital losses that had been made by members of the former RI group.
At first instance in the Federal Court, Emmett J found that Part IVA of the Income Tax Assessment Act 1936 (the 1936 Act) applied to the arrangement.
Issues decided by the Court
The appellant submitted that Emmett J had made three errors in applying Part IVA to the arrangement at first instance:
1) Emmet J erred by accepting an incorrect definition of 'scheme'
The appellant argued that the scheme should have been limited to the step that produced the tax benefit, namely the choice to obtain rollover relief under Subdivision 126-B of the Income Tax Assessment Act 1997. If the scheme were so limited, there would be no tax benefit to which Part IVA could apply by reason of s177C(2A) of the 1936 Act.
Their Honours rejected this submission, holding that the words and operation of s177A and other sections within Part IVA are inconsistent with the taxpayer's submission and that there is also no reason to adopt a narrower meaning of "scheme" in the particular context of s 177C(2A). The usual meaning of "scheme" allows the section to have its proper and intended application (to exclude from the application of Part IVA, in particular circumstances, certain tax benefits attributable to choices and elections). The particular circumstances were not present in this case because the scheme was wider than the roll-over choice.
2) Emmett J erred by focussing on the wrong 'tax benefit' in the arrangement
In relation to "tax benefit", their Honours rejected the taxpayer's submission that the trial judge focussed on the wrong tax benefit (use of capital losses by another entity rather than the non-inclusion of a capital gain in the assessable income of the taxpayer). The Court said that it was entirely appropriate for the trial judge to have regard to the use of capital losses by another entity in the context of considering the sixth and seventh factors in s 177D(b). It was clear that the trial judge was not confusing the use of capital losses with the actual tax benefit in that context.
3) In applying the test in s 177D(b), Emmett J employed 'but for' reasoning rather than the correct 'dominant purpose' test.
Their Honours rejected the taxpayer's submission that the trial judge misapplied the "dominant purpose" test in s 177D by adopting a "but for" test. The taxpayer's submission was largely based upon the fact that the trial judge, in assessing the eight factors, took the approach of comparing the scheme with the counterfactual. However, their Honours confirmed that such an approach is "not only open but is usually required in assessing the dominant purpose of the scheme". In this regard, their Honours referred specifically to the factor of the "manner" in which the scheme was carried out and stated that a comparison between the scheme and the counterfactual revealed the manner to be explicable only by the tax consequences. As well as generally approving the trial judge's approach and conclusion as correct, the Court specifically approved of the trial judge's analysis of the third, fifth, sixth, and eighth factors in s 177D(b).
ATO view of Decision
The decision is consistent with principles established in earlier case authorities relating to Part IVA and the concepts of scheme, tax benefit and dominant purpose.
Implications for ATO precedential documents (Public Rulings & Determinations etc)
Implications for Law Administration Practice Statements
Implications on Law Administration Practice Statements
We invite you to advise us if you feel this decision has consequences we have not identified, or if a precedential decision such as a Public Ruling or an ATO ID requires reconsideration or amendment. Please forward your comments to the contact officer by the due date.
| Date Issued:
||8 November 2011
| Due Date:
||1 February 2012
| Contact officer:
| Email address:
||02 937 48762
||02 937 48628
||52 Goulburn St, Sydney, NSW 2000
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