MIEA v Guo

Case [1997] FCA 22


CATCHWORDS

INCOME TAX - objection to assessment - whether a dividend paid on non-redeemable, non-cumulative convertible preference shares was a "debt dividend" under s46D of the Income Tax Assessment Act 1936.

Income Tax Assessment Act 1936 (Cth) ss46, 46A, 46C, 46D, 67AA; sub-ss46C(1), 46C(5), 46D(1), 46D(2); para46D(2)(c)
Taxation Laws Amendment (Company Distributions) Act 1987 (Cth) (No. 58 of 1987)

Halsbury's Laws (4th Ed), Vol 32 para 106

The Oxford English Dictionary, 2nd Ed (Oxford: Clarendon Press, 1989) Vol 5
The Macquarie Dictionary (NSW: Macquarie Library, 1981)

P.J. Norman, "Debt Dividends: The Test Case" (1996) 5 Taxation in Australia 10.
N.J. O'Bryan, "Preference Share Financing" (1986) 1 BLB 53
C.L. Pannam, The Law of Money Lenders in Australia and New Zealand (1964)
M. Pickering, The Problem of the Preference Share (1963) 26 MLR 499

Bond v Barrow Haematite Steel Co [1902] 1 Ch 353
Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279
Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 107 ALR 456
FCT v W E Fuller Pty Ltd (1959) 101 CLR 403
FCT v Spotless Service Ltd 96 ATC 5201
Hendy (Inspector of Taxes) v Hadley [1980] 2 All ER 554
Henry v Great Northern Railway Co [1857] 27 LJ Ch 1
Herbert v The King (1941) 64 CLR 461
James v FCT (1924) 34 CLR 404
Re The Isle of Thanet Electricity Supply Co Ltd [1950] 1 Ch 161
Linhart v Elms (1988) 81 ALR 557
Mills v Meeking (1990) 169 CLR 214
Riches v Westminster Bank Ltd [1947] AC 390

COMMISSIONER OF TAXATION V RADILO ENTERPRISES PTY LTD
NG229 OF 1996

LEE, SACKVILLE, LEHANE JJ
SYDNEY
3 FEBRUARY, 1997

IN THE FEDERAL COURT )
OF AUSTRALIA        )
NEW SOUTH WALES     )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO. NG229 OF 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:           COMMISSIONER OF TAXATION

Appellant

and

RADILO ENTERPRISES PTY LTD

Respondent

MINUTE OF ORDER

THE COURT:          LEE, SACKVILLE, LEHANE JJ

DATE OF ORDER:      3 FEBRUARY, 1997

WHERE MADE:         SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )
OF AUSTRALIA        )
NEW SOUTH WALES     )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO. NG229 OF 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:           COMMISSIONER OF TAXATION

Appellant

and

RADILO ENTERPRISES PTY LTD

Respondent

CORAM:    LEE, SACKVILLE, LEHANE JJ

DATE :3 FEBRUARY, 1997

PLACE:    SYDNEY

REASONS FOR JUDGMENT

LEE J:

This is an appeal from a judgment of a Judge of this Court (Davies J) in which his Honour ordered that the decision made by the appellant ("the Commissioner") on an objection to the assessment of income tax payable by the respondent ("Radilo") be set aside and the matter remitted to the Commissioner for…

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AGLC
MIEA v Guo [1997] FCA 22
Case
[1997] FCA 22
Decision Date

CaseChat Overview and Summary

The appeal in MIEA v Guo was brought by the Commissioner of Taxation against the decision of Davies J to set aside an assessment of income tax payable by Radilo Enterprises Pty Ltd. The sole issue on appeal was whether the dividend paid on non-redeemable, non-cumulative convertible preference shares issued by the Australia and New Zealand Banking Group Limited was a "debt dividend" under s46D of the Income Tax Assessment Act 1936. The court found that the dividend was not a debt dividend and that the appeal should be dismissed with costs. The court held that the relationship between the bank and the shareholders was not that of debtor and creditor, and that the payment of the dividend could not be regarded as equivalent to the payment of interest on a loan. The court rejected the Commissioner's argument that the issue should be determined from the perspective of the shareholder, and held that the relevant factors to be considered included the manner in which the dividend was calculated, the conditions applicable to the payment of the dividend, and any other relevant matters. The court found that the relationship between the bank and the shareholders did not exhibit the characteristics of a debtor and creditor relationship, and that the payment of the dividend could not be regarded as equivalent to the payment of interest on a loan. The court held that the dividend was not a debt dividend within the meaning of s46D of the Act, and that Radilo was entitled to a rebate under s46 of the Act. The appeal was dismissed with costs.

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