High Court of Australia

Bywater Investments Limited v Commissioner of Taxation [2016] HCA 45

Hua Wang Bank Berhad v Commissioner of Taxation

16 Nov 2016

Case Number: S134/2016 S135/2016


French CJ, Kiefel, Bell, Nettle, Gordon JJ


Taxation – Income tax - Residence of company - Income Tax Assessment Act 1936 (Cth), s 6(1) - Where directors of appellant companies resident abroad - Where meetings of directors of appellants ostensibly held abroad - Where directors acted at direction of Australian resident who controlled appellants and made decisions then implemented by directors - Whether appellants residents of Australia for income tax purposes - Whether "central management and control" of appellants located abroad in place where boards of directors met - Whether, as question of fact and degree, real business and operations of appellants controlled and directed from Australia - Whether functions of appellants' boards of directors usurped - Effect of Esquire Nominees Ltd v Federal Commissioner of Taxation (1972) 129 CLR 177.

Taxation – Income tax - Residence of company - Double taxation agreements - Tie-breaker provisions - Whether appellants entitled to protection from Australian income tax under relevant double taxation agreements - Whether "place of effective management" of appellant companies other than in Australia.

Words and phrases – "Australian resident", "central management and control", "company's constitutional organs", "corporate residence", "formal organs", "place of effective management", "real business", "residency", "rubber-stamp", "superior or directing authority", "usurp".

Income Tax Assessment Act 1936 (Cth) – ss 6(1), 25A, Pt X.

Income Tax Assessment Act 1997 (Cth) – ss 6-5, 995-1.

International Tax Agreements Act 1953 (Cth) – Scheds 1, 15.

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