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


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.

Author profiles

Dr Keith Kendall CTA
Keith is a Tax Partner at Rigby Cooke Lawyers in Melbourne. Previously, he was a Barrister at the Victorian Bar for almost six years, specialising in all aspects of taxation law at both a Commonwealth and state level, providing opinions as well as handling all aspects of the tax litigation process, including objections and ruling applications. Prior to coming to the Bar in 2011, he worked in the Tax Services division of Deloitte in Melbourne for over 10 years. Until 2016, Keith was the coordinator of Tax Law programs at the School of Law at La Trobe University, where he was a Senior Lecturer. Updated by Kathy Xu for the New Member / Grandaunts Cocktail network events on 31 May 2018 - Current at 01 August 2018
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Daniel Diaz FTI
Daniel is a barrister at the Victorian Bar practising in taxation law. He acts for taxpayers, including public companies, private companies and individuals, and the Commissioner in matters concerning income tax, GST and state taxation laws. Prior to being called to the Bar, he was a solicitor at Arnold Bloch Leibler and Allens Arthur Robinson (now Allens). - Current at 29 May 2019
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