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Application of Part IVA in Minerva Financial Group: Focusing on
Commercial Substance over Tax Effects
Introduction
In Minerva Financial Group Pty Ltd v Commissioner of
Taxation [2024] FCAFC 281, the Full Federal Court
reversed the Federal Court’s decision in finding that
Australia’s general anti-avoidance rules (Part IVA) did not
apply to income distributions made by a trust within a stapled
group structure. This article analyses the Full Federal Court’s
reasons for their judgment, highlighting the emphasis placed on the
commercial substance over mere tax outcomes obtained.
Background
The facts can be summarised as follows:
- The appellant, Minerva Financial Group Pty Ltd is a member of
the Liberty group. - Prior to 2007, the Liberty group had a history of establishing
securitisation trusts. The units in those trusts were wholly owned
by a company in the Liberty group. - In 2007, the Liberty group undertook a restructure in
anticipation of an initial public offering (IPO) of stapled
securities, whereby it would have a ‘trust silo’ and a
‘corporate silo’. - Minerva Holding Trust (MHT) was established to hold all of the
units in new securitisation trusts going forward. MHT issued an
ordinary unit to the ‘trust silo’ and a special unit to the
‘corporate silo’. - The IPO was postponed and in the 2012 to 2015 income years,
income earned by MHT (from the securitisation trusts) was mainly
distributed to the ‘trust silo’ (via the ordinary unit) and
then to the ultimate non-resident shareholders. Further MHT lent
amounts it received as distributions from the securitisation trusts
to the ‘corporate silo’. - The tax consequence was that profits earned by the ‘trust
silo’ were subject to a withholding tax of 10 percent rather
than a corporate tax rate of 30 percent (if the profits from the
securitisation trusts had instead been earned by the ‘corporate
silo’ as was the case prior to 2007).
The Commissioner sought to apply Part IVA to include amounts in
the appellant’s assessable income for the 2012 to 2015 income
years, arguing that the income would otherwise have been
distributed to the corporate silo, as it had prior to 2007.
Diagram Explaining Full Federal Court Case
Source: Minerva
Financial Group Pty Ltd v Commissioner of Taxation [2024] FCAFC
28 at paragraph 18
Application of Part IVA
For Part IVA to apply, it must be concluded a party entered into
a scheme(s) with the dominant purpose (having regard to the
objective factors in s.177D of the Income Tax Assessment Act 1936
(Cth)) of gaining a tax benefit.
The primary judge had held that Part IVA applied to two of three
schemes asserted by the Commissioner – the common features of
these schemes being:
- The choice made by the taxpayer, as trustee of MHT, not to
exercise its discretion to distribute any more than a nominal
amount of MHT’s distributable income to the ‘corporate
silo’ via the special unit and to distribute the majority of
the income to the ‘trust silo’ via the ordinary unit;
and - The lending by MHT of the amounts it received as distributions
from the securitisation trusts to the ‘corporate
silo’.
Importantly, the primary judge held that Part IVA did not apply
to the 2007 restructure itself.
The Full Federal Court found that the primary judge had not
considered the objective factors in s.177D appropriately and
instead had focused on the subjective purpose of the trustee of
MHT. In particular, the primary judge had held that there was a
dominant purpose of obtaining a tax benefit because the taxpayer
did not proffer a commercial reason why they had only distributed
nominal amounts to the ‘corporate silo’.
In finding that there was no dominant purpose of obtaining a tax
benefit, the Full Federal Court observed:
- There was nothing extraordinary about distributions flowing in
accordance with the terms of the trust constitution. - Setting-off intra-group balances in ledger account entries was
also not unorthodox for transactions within a commonly owned
group. - The mere fact that the structure diverged from the
pre-restructure course of conduct was of no relevance, particularly
as the Commissioner did not seek to challenge the primary
judge’s conclusion that Part IVA did not apply to the 2007
restructure itself. - The flow of income distributions from MHT to the ‘trust
silo’ merely resulted from the ‘trust silo’ holding the
ordinary units in MHT. - The loans by MHT to the ‘corporate silo’ did not create
a mismatch between the form and the substance of the scheme. - The distribution of income to the ‘trust silo’ (and
subsequently its non-resident owners) had real economic and
financial consequences that would not have flowed to those owners
if income had instead been distributed to the ‘corporate
silo’, by for example, enabling the repayment of debts owed to
the ‘corporate silo’.
Overall, the Court held that no objective factor clearly pointed
to a dominant purpose of tax avoidance.
Conclusion
The emphasis of commercial purpose over tax benefit alone,
reinforces Part IVA’s objective analysis requirement. Part IVA
cannot simply be triggered by the obtaining of tax benefits.
Commercial realities and consequences for the relevant parties
matter greatly in the Part IVA balance.
Once it was accepted that the 2007 restructure did not
constitute a scheme entered into for the dominant purpose of
obtaining a tax benefit, the Commissioner’s arguments comparing
the post-restructure state of affairs to the pre-restructure tax
outcomes were no longer relevant. This case provides helpful
guidance for taxpayers seeking to restructure who have a clear
economic and commercial rationale for doing so.
Footnote
1. https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2024/2024fcafc0028.
Originally published 08 April 2024
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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