2009-02-02
In Interpretive Decision 2009/2, the Australian Tax Office ruled that an Australian resident taxpayer which is a payer of dividends on redeemable preference shares is “unrelated” to a U.S. resident financial institution for the purposes of Article 11(3)(b) of the U.S.-Australia Income Tax Treaty (the “Treaty”). Article 11 of the Treaty deals with the payment of interest. Therefore, the Australian Tax Office must have viewed the redeemable preference shares as debt for Australian tax purposes.
Under the facts of the ruling, the Australian company participated in a financing arrangement with a US financial institution in order to obtain funds at a lower cost for the Australian group of companies. The Australian company issued redeemable preference shares to the US financial institution.
The redeemable preference shares were mandatorily redeemable 10 years after issue and included the following rights:
The Australian company makes dividend payments to the US financial institution. Where specified events occur involving compliance with the terms of the redeemable preference shares, the director appointed by US financial institution has five votes on the board of the Australian company (with a quorum constituted by the one director appointed by US financial institution ) but only with respect to any decision or resolution to rectify the specified event.
Article 11(3) of the Treaty provides that Australia will not tax interest arising in Australia where a US financial institution is beneficially entitled to that interest (and satisfies other conditions). Article 3(2) of the Treaty provides that any term not defined will have the meaning given under the laws of Australia relating to the taxes to which the Treaty applies, unless the context otherwise requires. The term “unrelated” is not defined in the Treaty or in Australian domestic tax law.
The Australian Tax Office ruled that, since the US financial institution has restricted voting and profit participation rights, the redeemable preference shares do not cause the Australian company and the US financial institution to be “related” within the meaning of Article 11(3)(b) of the Treaty.
It is interesting to note that the financing arrangement was structured as redeemable preference shares. Presumably, the US financial institution was claiming that the redeemable preference shares should be treated as equity for U.S. tax purposes.