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25 Jun 13 Decision Impact Statement – Hua Wang Bank Berhad

The ATO has released a Decision Impact Statement on the decision of the Full Court of the Federal Court in Hua Wang Bank Berhad v FCT [2013] FCAFC 28.

The case was the taxpayer’s appeal to the Full Court of the Federal Court from a refusal to grant relief from a notice to produce where compliance with the notice might involve the commission of an offence under the law of a foreign nation.

The taxpayer is incorporated in Samoa. The Commissioner served the notice to produce on the taxpayer seeking documents held in the place of incorporation. The request was central to the issue in dispute in a Pt IVC TAA 1953 appeal, namely, the question of control of the taxpayer.

The state of Samoa sought to intervene or be heard as amicus curiae in the taxpayer’s application for leave to appeal and, if leave were granted, in the appeal.

The Full Court dismissed the taxpayer’s appeal. The Full Court found that none of the taxpayer’s grounds of appeal had substance and that the primary judge paid due regard to the principle of comity which requires that a cautionary approach be adopted in circumstances where there is enforcement in Australia of laws which infringe the legislative policies of other countries.

The Full Court also refused the application made by Samoa to intervene or be heard as amicus curiae.

The ATO’s view of the decision is that the Full Court has correctly determined that there was no error of principle in the exercise of discretion by the primary judge in refusing to set aside or vary the notice to produce.

In addition, the ATO’s view is that the Full Court correctly refused the application made by Samoa to intervene or be heard as amicus curiae.

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