BHP Billiton Limited (now named BHP Group Limited) v. Commissioner of Taxation

Lower Court Judgment

29/01/2019 Federal Court of Australia (Allsop CJ, Davies J, Thawley J)

[2019] FCAFC 4

Catchwords

Taxation – Where appellant is part of a dual-listed company arrangement with non-resident company – Where third company (BMAG) indirectly owned by appellant and non-resident company – Where BMAG derived income from sale of commodities purchased from non-resident company’s Australian subsidiaries – Whether non-resident company’s Australian subsidiaries were “associates” of BMAG within meaning of s 318 of Income Tax Assessment Act 1936 (Cth) – Whether BMAG, appellant and/or the non-resident company were “sufficiently influenced” by appellant and/or the non-resident company within meaning of s 318(6) – Whether Full Court erred in concluding that a person or entity acts "in accordance with" directions, instructions or wishes of another entity for purposes of s 318(6)(b) if person or entity merely acts "in harmonious correspondence, agreement or conformity with" those directions, instructions or wishes – Whether Full Court should have found that, in order to act "in accordance with" directions, instructions or wishes of another entity for purposes of s 318(6)(b) a person or entity must treat that other entity's directions, instructions or wishes as themselves being a sufficient reason so to act – Whether Full Court erred in finding that at a minimum appellant and BHP Billiton Plc each acted "in accordance with" the "directions, instructions or wishes" of the other for the purposes of s 318(6)(b) – Whether Full Court should have concluded that such actions were not done "in accordance with" the "directions, instructions or wishes" of the other for the purposes of s 318(6)(b).

Short particulars