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31 Oct 08 Partnership distributions subject to withholding tax under US Treaty - Deutsche Asia Pacific

The Federal Court (Edmonds J) has held that distributions made from a limited partnership established under the laws of New South Wales (Industrie LP) to the taxpayer were subject to Australian withholding tax (at the rate of 15%) pursuant to Article 11(9)(a) of the Australian United States of America double taxation agreement. An argument by the taxpayer that the provisions of Article 11(9)(a) did not override the provisions of Article 11(3)(b) (which exempted the distributions from withholding tax) was rejected. An alternative argument that Article 11(9)(a) did not apply to the whole of the distributions was also rejected: Deutsche Asia Pacific Finance Inc v FCT (No. 2) [2008] FCA 1570 (Federal Court, Edmonds J, 22 October 2008).

For a copy of the decision, go here

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