Flip and spins to avoid sandwich structure not caught by Pt IVA

Abstract

It is now generally conceded that an overall commercial purpose will not protect elements of a scheme motivated by tax considerations from the ravages of Pt IV A, the general income tax anti-avoidance provisions in ITAA 1936. Therefore it may come as surprise that the AA T (Downes J, President and Frost M) recently held in News Australia Holdings Pty Ltd v FC of T 2009 ATC ~10-109 that a complex element of the 2004/05 global restructure by the News Group substantially motivated by tax considerations was not subject to Pt IVA.

The AAT determined that the Commissioner should not have cancelled a tax benefit, being the future benefit of capital losses of around $1.5b arising to the taxpayer in connection with its global restructure. It was accepted that, while tax considerations were important, the dominant purpose of the relevant transactions could be attributed to achieving certain commercial objectives. The irony is that the primary rationale for the structure of the transactions was the avoidance of adverse tax implications in the UK and US.