Litigation Miscellaneous 2016

Whose sham to prove? - Millar in the Full Federal Court

Source: Taxation In Australia Journal Article

Published Date: 1 Sep 2016


In Millar v FCT (4 July 2016), the Full Court of the Federal Court found that a loan transaction was a sham. The result was that tax had been avoided through fraud or evasion, and the taxpayers were liable to pay an administrative penalty for intentional disregard of the tax law. The decision addresses two substantive legal issues. The first is the meaning of the term sham as used in Australian law and the elements comprising that concept. The second is whether interest that has been capitalised can be considered paid for withholding tax purposes. In addition, the court was required to consider the manner in which a taxpayer can discharge the onus of proof in taxation litigation and the statutory interpretation principles that apply when construing legislative provisions that have been rewritten. This article considers the decision and its implications in detail.

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Litigation Miscellaneous 2016

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