This case is important for a number of reasons including the broad interpretation taken of the word “recommendation”, the broad interpretation taken of the expression “personal advice”, the recognition of “social proofing” as a basis to effectively provide a recommendation for the purposes of the Corporations Law and the basis upon which the disclaimer used by Westpac was ineffective.
Provided the relevant treaty is a Covered Tax Agreement its terms are now modified by the MLI Act. This article looks to the practical implications of the modifications.
On the basis that TR 2018/5 is revenue neutral, confusing, inconsistent with precedent and will result in Australia breaching its international treaties it is not surprising that an amendment of the law is required. Adesso urges all interested parties to support either the elimination of the test for central management and control or the introduction of a modified central management and control test along the lines set out in TR 2004/15.
Glencore won a major transfer pricing case which significantly affects the Commissioner’s powers to adjust transactions. The decision is reported as Glencore Investment Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCA 1432 (“the Glencore Case”). The ATO has recently sought to appeal, we wait with interest to see the result in the Full Federal Court. .
On 9 October the OECD released a discussion paper detailing a public consultation which is proposed to be held on 21 and 22 November 2019 at the OECD Conference Centre.