Published on 01 Jun 11
by "THE TAX SPECIALIST" JOURNAL ARTICLE
The two principal issues in the AXA Asia Pacific Holdings Ltd case were, broadly, whether AXA dealt "at arm's length" with an investment bank in respect of a sale of shares to a non-wholly owned subsidiary of the bank, and whether the omission from AXA's assessable income of an amount equal to the resulting capital gain (which was disregarded under the scrip for scrip roll-over provisions) constituted a "tax benefit" within the meaning of Pt IVA of the Income Tax Assessment Act 1936. The taxpayer was successful on both points at first instance in the Federal Court and on appeal, and the High Court has declined to hear a further appeal. Part 1 of this article, which is published in two parts, examines in detail the facts of the case, and discusses whether the dealings were "at arm's length" and whether a "tax benefit" was obtained by AXA. Part 2 will discuss the High Court special leave proceedings, and the potential for application of s 177D.