Dive into a curated collection of articles and analyses, offering a deeper understanding of trends, challenges and opportunities in Australian taxation.



Dive into a curated collection of articles and analyses, offering a deeper understanding of trends, challenges and opportunities in Australian taxation.

My submission: ATO draft ruling TR 2024/D1. Royalties – character of payments in respect of software and intellectual property rights.
Mar 2024

Thank you for the opportunity to discuss Draft Ruling, TR 2024/D1 (“the Draft”) and to comment on it. The Australian Taxation Office’s continued public engagement on such topics is to be commended. It is also reassuring to see elements of previous submissions reflected in this latest draft.

Good faith in domestic and international tax law
Sep 2023

The expression “good faith” is not unknown in Australian domestic law, but its occurrence and use appears to be significantly more limited than in jurisdictions that are not derived from English common law.

Tapped out on Treaties and TARP
Sep 2023

The Australian tax system uses a number of concepts to determine the nexus a taxpayer must have before they are liable to Australian tax on a particular fact pattern. Non-residents generally only need to consider the Australian tax consequences of Australian “sourced” income, or capital gains transactions where the asset is a direct or indirect interest in Australian real property or relates to a business carried on by the foreign resident, through a permanent establishment in Australia.

Private rulings: are they worth it?
July 2022

This article seeks to describe a structured approach, with reference to the law and relevant decisions, which may be used when trying to decide whether it is worthwhile to apply for a private ruling. The framework suggested is that which is generally used in choosing consumer products. The article suggests that the decision must be made by reference to the taxpayer’s corporate attitude to tax risk, and the other approaches available for achieving
the desired level of certainty on the tax risk associated with a particular issue.

Legal professional privilege in Australian tax: ATO attacks Mylan debt push down
June 2022

On the 22nd of June 2022, the ATO has released an updated version of its voluntary “protocol” for taxpayers who wish to claim legal professional privilege (LPP) when they are asked for certain documents. The ATO and professions have been working for at least 4 years to try to reduce disputes about whether legal professional privilege applies to documents sought by the ATO, especially those sought by statutory notices using coercive powers. It is believed the Law Council initially hoped that a joint protocol might be released, but the final document is that of the ATO.

Australia: PepsiCo in diverted profits tax dispute
Apr 2022

On February 2 2022 PepsiCo filed appeals in the Australian Federal Court against DPT assessments raised by the Australian Taxation Office. The appeal concerns the 2018 and 2019 years.

Legal Professional Privilege in Australian Tax Disputes: C of T v PwC
Apr 2022

Complex tax disputes (and tax risk issues in transactions) often arise in relation to cross border dealings. A critical part of understanding the risk is the ability to quickly and thoroughly gather the relevant evidence. It is common for the case theory to evolve as this is done, and the initial understanding of the evidence may prove to ultimately be quite incorrect.

Australian Federal Court Judgment Against Singtel In Transfer Pricing Dispute
Jan 2022

On Dec. 17, 2021 the Federal Court of Australia delivered judgment against Singapore Telecom Australia Investments Pty Ltd (STAI) ([2021] FCA 1597), the taxpayer in a transfer pricing dispute against the Australian Taxation Office (ATO). That was the last official sitting day for the Court in 2021 and it will officially commence sittings again Jan. 31, 2022. December and January are generally a lengthy holiday period in Australia.

Australia: Privacy of corporate taxpayer information in the Australian tax system
Dec 2021

Multinational enterprises often possess commercially sensitive information, the public disclosure of which could damage them competitively. This may range from contract terms to client names. Often this information is specific to a particular jurisdiction, or even more commonly said to not be directly relevant to a particular jurisdiction. The Australian Taxation Office (ATO), however, often demands global information from groups when reviewing the operations of their Australian entities.

INSIGHT: Australian Tax Office Appeals ‘Glencore’ Transfer Pricing Decision
May 2020

The Australian Tax Office is appealing Glencore Investment Pty. Ltd.’s September 2019 transfer pricing victory in the Federal Court of Australia. The decision was significant in part because there is little transfer pricing case law in Australia, says Paul McNab of DLA Piper.

Could an Australian APA be enforced in a court?
Apr 2014

An advance pricing arrangement (APA) is generally an arrangement between a taxpayer, the Australian Taxation Office (ATO) and sometimes also a foreign tax authority regarding the income tax treatment of international transactions, agreements or arrangements between related parties or associates.

The High Court’s approach to taxation special leave applications
Feb 2012

Litigation may come before the High Court of Australia either in the court’s original jurisdiction (pursuant to ss 73 and 76 of the Constitution), or the court’s appellate jurisdiction (pursuant to s 73 of the Constitution). Due to the nature of taxation cases, they primarily come before the High Court in the latter jurisdiction.

Keep up to date with what's happening at McNab

Keep up to date with what’s happening at McNab