Mills v. Commissioner of Taxation

Lower Court Judgment

8/12/2011 Federal Court of Australia (Dowsett J, Edmonds J, Jessup J)

[2011] FCAFC 158

Catchwords

Taxation — Income tax — Anti-avoidance provisions — Imputation benefits — Scope of Income Tax Assessment Act 1936 (Cth), s 177EA — Bank issued securities comprising a non-redeemable preference share 'stapled' to a subordinate note issued by Bank from its New Zealand branch ('Securities'), so that it enjoyed both tax deductions on the distributions in New Zealand as well as a cost advantage in offering Australian residents an imputation benefit (or an equivalent adjustment) — Securities 'equity' and not 'debt' for income taxation purposes — Holders of the Securities may receive discretionary, non-cumulative, preferential franked distributions at a specified rated, payable as interest on the note unless an 'assignment event' occurs in which case the distribution is payable as a dividend on the preference share — Subsequent determination by Commissioner of Taxation denying franking credits to security-holders upon distribution — Whether bank entered into or carried out a scheme for disposition of membership interests for the purpose (not being an incidental purpose) of allowing security-holders to obtain an imputation benefit.

Short Particulars