CHEVRON AUSTRALIA HOLDINGS PTY LTD v FC of TJudges:
Full Federal Court, New South Wales
MEDIA NEUTRAL CITATION:
 FCAFC 62
1. I have had the advantage of reading the reasons to be published of Pagone J. I agree with the orders proposed by his Honour and, subject to the following, which is not intended to be by way of qualification, with his reasons. It is unnecessary to repeat the background circumstances of the matter beyond what is necessary to explain why the appeal should be dismissed. I do not repeat, except where necessary, the statutory provisions and surrounding secondary materials.
Division 13 of the 1936 Act
2. Central to the operation of Div 13 is the meaning of the words and phrase " property " , " consideration " and " might reasonably be expected to have been given or agreed to be given " .
3. In reaching a view about the meaning of these words and this phrase and how they operate in a coherent and cohesive way, it is
ATC 19611paramount to recognise the fiscal and commercial context in which the provisions (and the provisions in Sub-div 815A of the 1997 Act, to be discussed in due course) are operating. This is not to put to one side or to diminish the necessity to begin and end with the words of the statute. Nor is it to seek to find a purpose of the Division outside its words. To begin and end with the words of the statute does not reflect a call to narrow textualism; it is the recognition that, ultimately, it is the words used by Parliament which frame the question of meaning, and which will provide the answer to that question of meaning. Context, however, is indispensable, whether as an explicit or implicit consideration. It gives the place, the wholeness and the relational reality to words; it helps prevent linear thinking and sometimes beguilingly simple and attractive logic with words driving meaning to unrealistic and impractical ends; and it helps ascribe meaning conformable with commonsense and convenient purpose gained from the relevant part of the statute as a whole, here Div 13.
4. The fiscal and commercial context of Div 13 is the attempt to bring to tax in Australia, on a given hypothesis, income of a taxpayer whose affairs, but specifically the transaction in question, are, and is, international in character. The commercial character of the context of the Division means that the subject " international agreement " (as that phrase is defined in s 136AC) will be of infinite variety and possible complexity. In each case, however, the focus of the Division is to bring a commercial reality based on an hypothesis of actors independent of each other to the viewing of a transaction (for the purpose of taxation) in circumstances where that commercial reality so based (for that fiscal purpose) has been distorted by considerations that can be described as a lack of relational independence or, to use metaphor, a lack of arm ' s length dealing between the parties to the transaction. That is not to say that there was not commercial reality to the transaction as made within the framework that reflected a lack of independence between the parties, that is, within the relevant group or related company relationship.
5. That is the broad context and purpose of the Division - to bring a transaction, an international agreement, from a state influenced by considerations of lack of independence, to a state reflective of arm ' s length dealing, for the purposes of fitting the transaction within the taxpayer ' s affairs in that form consistent with commercial reality based on hypothesised independent dealing.
6. The words used by Parliament for this task, particularly those in ss 136AA and 136AD, should therefore be given meaning and operation conformable with this purpose and conformably with the necessary flexibility of analysis that may be required in applying the statute to the infinite variety of circumstances of commercial life. The provisions should not be interpreted pedantically.
7. Section 136AD deals with circumstances where the taxpayer has either supplied or acquired property under an international agreement and that supply or acquisition was for an amount of consideration that was less or more than would have been the arm ' s length consideration for that supply or acquisition. Subsections 136AD(1), (2) and (3) deal with circumstances where the arm ' s length consideration can be ascertained. Subsection 136AD(4) deals with the circumstance where it is not possible or practicable for the Commissioner to ascertain the arm ' s length consideration.
8. The relevant provisions here are ss 136AD(3) and (4) which are in the following form:
- (a) a taxpayer has acquired property under an international agreement;
- (b) the Commissioner, having regard to any connection between any 2 or more of the parties to the agreement or to any other relevant circumstances, is satisfied that the parties to the agreement, or any 2 or more of those parties, were not dealing at arm ' s length with each other in relation to the acquisition;
- (c) the taxpayer gave or agreed to give consideration in respect of the acquisition and the amount of that consideration exceeded the arm ' s length consideration in respect of the
ATC 19612acquisition; and
- (d) the Commissioner determines that this subsection should apply in relation to the taxpayer in relation to the acquisition;
then, for all purposes of the application of this Act in relation to the taxpayer, consideration equal to the arm ' s length consideration in respect of the acquisition shall be deemed to be the consideration given or agreed to be given by the taxpayer in respect of the acquisition.
(4) For the purposes of this section, where, for any reason (including an insufficiency of information available to the Commissioner), it is not possible or not practicable for the Commissioner to ascertain the arm ' s length consideration in respect of the supply or acquisition of property, the arm ' s length consideration in respect of the supply or acquisition shall be deemed to be such amount as the Commissioner determines.
9. The concepts employed are: property and the acquisition of property; an absence of dealing at arm ' s length by parties to the agreement in relation to the acquisition of property; and the giving by the taxpayer of an amount of consideration in respect of the acquisition that exceeded the arm ' s length consideration.
10. These concepts are given content by various definitions in s 136AA.
11. The definitions of " acquire " (and hence " acquisition " ) and " property " are wide and inclusive terms. Together with the (also inclusive) definition of " services " (a word included in (d) of the definition of " property " ) they are sufficiently wide to embrace the consequences of entering into a commercial lending arrangement. Indeed, (d) of the definition of " services " refers to " rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under ... an agreement for or in relation to the lending of moneys " . The text of these definitions is as follows:
(1) In this Division, unless the contrary intention appears:
- (a) acquire by way of purchase, exchange, lease, hire or hire-purchase; and
- (b) obtain, gain or receive.
- (a) a chose in action;
- (b) any estate, interest, right or power, whether at law or in equity, in or over property;
- (c) any right to receive income; and
- (d) services.
services includes any rights, benefits, privileges or facilities and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
- (a) an agreement for or in relation to:
- (i) the performance of work (including work of a professional nature);
- (ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction;
- (iii) the conferring of rights, benefits or privileges for which consideration is payable in the form of a royalty, tribute, levy or similar exaction; or
- (iv) the carriage, storage or packaging of any property or the doing of any other act in relation to property;
- (b) an agreement of insurance;
- (c) an agreement between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
- (d) an agreement for or in relation to the lending of moneys.
12. Thus, the entry into, and the taking of the benefit of, an agreement to lend money by a borrower is the obtaining, or gaining, or receiving of the rights, benefits or facilities under an agreement for the lending of moneys.
13. The word " consideration " and the phrase " amount of consideration " are given some content by s 136AA(3)(b) as follows:
(3) In this Division, unless the contrary intention appears:
- (b) a reference to consideration includes a reference to property supplied or acquired as consideration and a reference to the amount of any such consideration is a reference to the value of the property;
14. The phrase " arm ' s length consideration " is defined in s 136AA(3)(d) as follows:
(3) In this Division, unless the contrary intention appears:
- (d) a reference to the arm ' s length consideration in respect of the acquisition of property is a reference to the consideration that might reasonably be expected to have been given or agreed to be given in respect of the acquisition if the property had been acquired under an agreement between independent parties dealing at arm ' s length with each other in relation to the acquisition;
15. A number of things are to be noted about ss 136AA(3) and 136AD(3). First, for s 136AD(3)(c), the consideration in the transaction in question (the international agreement in question) is given or agreed to be given by the taxpayer . Secondly, for s 136AA(3)(d), the concept of the consideration that might reasonably be expected to have been given or agreed to be given had the agreement been reached between independent parties dealing at arm ' s length involves a suppressed premise or assumption that, in the real world, commercial parties could (and so would) enter into such a transaction such that an arm ' s length consideration can be hypothesised. Thirdly, there is no provision requiring the conclusion that any term of an international agreement must be either the " property " (or part thereof) or " consideration " (or part thereof). Fourthly, the process of identifying what is property and what is consideration, in any particular circumstances, may involve a process of characterisation governed by the definition of the terms, the commercial context and the requirement to hypothesise what might reasonably be expected to have been given or agreed to be given assuming independent parties.
16. A critical, and first, step in the analysis is to identify the property the subject of the acquisition for s 136AD(3)(a). It is that property in respect of the acquisition of which the consideration was given or agreed to be given by the taxpayer for s 136AD(3)(c); and it is that property that is the subject of the hypothesis as to what consideration might reasonably be expected to have been given or agreed to be given for s 136AA(3)(d). In other words, the property the subject of the actual (s 136AD(3)(c)) and hypothesised (s 136AA(3)(d)) agreement does not change. The primary judge so concluded at [ 76 ] of the reasons.
17. Once the property is identified, it is necessary to identify, through an examination of the facts, the consideration given by the taxpayer in respect of its acquisition. This actual consideration is then to be compared with the hypothesised consideration that might reasonably be expected to have been given or agreed to be given in respect of the acquisition of the same property under an agreement between independent parties dealing at arm ' s length.
18. Elucidation of the operation of the provisions in question is best done by reference to the facts and evidence. The commercial background to the agreement entered into between the appellant, CAHPL, and its subsidiary, CFC, is described in the judgment of Pagone J.
19. The effect of the interest payments made at the rate of 9 % under the agreement created a tax deduction for CAHPL against its operating revenue from its interest, through subsidiaries, in the North West Shelf gas project. The interest as income in the hands of CFC was not taxable in the United States: [ 126 ] and [ 147 ] of the reasons. Further, because CFC was a wholly owned foreign subsidiary of CAHPL, the dividends declared by CFC from the profits thus made were not assessable income in the hands of CAHPL: s 23AJ of the 1936 Act. Thus, operating income that would otherwise have been assessable income was transformed, by the deduction for outbound interest and receipt of inbound non-assessable dividends, into non-assessable income.
ATC 19614The decisions as to the return of capital, the raising of funds in the United States and the debt level of CAHPL were made by officers of Chevron Treasury in particular by Mr David Krattebol, Global Treasurer of Chevron and a director of CFC. As found by the primary judge at [ 165 ] of his reasons, " CAHPL ' s debt level of USD 2.5 billion was chosen [ by Chevron Treasury ] because it was the most tax efficient corporate capital structure and gave the best after tax result for the Chevron group " .
21. Though some consideration was given by the Commissioner to the possible application of Part IVA of the 1936 Act, no assessment was raised on that basis.
22. The written agreement made on 6 June 2003 between CAHPL and CFC was entitled " Credit Facility " . Using the words of the definition of " property " , the property in question is to be seen as the " rights, benefits, privileges or facilities ... provided, granted or conferred under " the Credit Facility. The primary judge said at [ 73 ] :
[ T ] he property ... was the rights or benefits granted or conferred under that Credit Facility, including the sums lent.
23. The recitals of the agreement were short:
Whereas, [ CAHPL ] desires to borrow an amount not exceeding in the aggregate the equivalent in Australian Dollars (determined at the time of each drawdown as the sum of the total principal amount of Advances then outstanding plus the amount to be loaned on such drawdown date) of Two Billion Five Hundred Million United States Dollars from [ CFC ] and [ CFC ] is prepared to make loans upon the terms hereof;
24. " Advance " was defined as each lending to CAHPL pursuant to sections 3.1 and 4.1 of the agreement. The " Maturity Date " for each Advance was 30 June 2008.
25. Article III dealt with loans. Section 3.1 dealt with Advances as follows:
Subject to the provisions of this Agreement, [ CFC ] hereby agrees, at its sole discretion, to make Advances from time to time to [ CAHPL ] in the aggregate the equivalent in Australian Dollars (determined on the basis of the total of the then outstandings and the amount to be loaned at the time of each drawdown) of Two Billion Five Hundred Million United States Dollars.
26. Thus, CAHPL had no right, benefit, privilege or facility by way of any right to call for funds. This was made pellucid by the first paragraph of section 3.2:
[ CFC ] shall have no commitment to make any Advances and shall not be entitled to any commitment fee with respect to this Agreement.
27. The last paragraph of section 3.2 canvassed termination as follows:
[ CFC ] may terminate this Agreement at any time without cause. [ CFC ] shall have no right to require prepayment of any Loans outstanding at the date of such termination. [ CAHPL ] may terminate this Agreement at any time no Advances are outstanding hereunder without cause.
28. Section 3.3 concerned payments by CAHPL. The principal of each Advance was to be paid on the Maturity Date and interest monthly in arrears in Australian dollars.
29. Section 3.4 expressed the only right granted to CAHPL under the agreement as follows:
[ CAHPL ] shall have the right to prepay any Advance made to it. [ CFC ] shall have the right to demand prepayment of all or any part of the Advances upon a Change of Control. To exercise such right, [ CFC ] shall give [ CAHPL ] written notice specifying the principal to be prepaid and the date for such prepayment. On the date so specified by [ CFC ] , [ CAHPL ] shall prepay the principal of the outstanding Advances specified in the Lender ' s aforesaid notice in full together with interest accrued thereon to the date of prepayment.
30. Section 3.5 provided that the proceeds of the Advances were to be used as agreed between CAHPL and CFC.
31. Section 3.6 concerned the Contractual Currency. It relevantly provided as follows:
Each payment by [ CAHPL ] under this Agreement will be made in Australian Dollars (the " Contractual Currency " ). To the extent permitted by applicable law, any obligation of [ CAHPL ] to make payments under this Agreement in the Contractual
ATC 19615Currency will not be discharged or satisfied by any tender in any currency other than the Contractual Currency, except to the extent such tender results in the actual receipt by [ CFC ] , acting in a reasonable manner and in good faith in converting the currency so tendered into the Contractual Currency, of the full amount in the Contractual Currency of all amounts due under this Agreement. If for any reason the amount in the Contractual Currency so received falls short of the amount in the Contractual Currency due in respect of this Agreement, [ CAHPL ] will, to the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency as may be necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency so received exceeds the amount in the Contractual Currency due in respect of this Agreement, [ CFC ] will refund promptly the amount of such excess.
32. Article IV deals with drawdowns. Section 4.1 relevantly provided as follows:
[ CAHPL ] shall give [ CFC ] notice of each request for an Advance before 10:00am San Francisco time on the date such Advance is to be made which date shall be a Banking Day, specifying the information required by the form of Notice of Drawdown.
In making any Advance, [ CFC ] shall be entitled to rely upon a telephonic request for an Advance from an Authorised Representative, followed by a written Notice of Drawdown signed by an Authorized Officer, provided that the making of any Advance shall be at sole discretion of [ CFC ] .
33. The phrase " Notice of Drawdown " was defined as one substantially in the form attached to the agreement relevantly as follows:
Pursuant to Section 4.1 of that certain Credit Facility (the " Agreement " ) dated June 6, 2003 between ChevronTexaco Australia Holdings Pty Ltd and you, as Lender, the undersigned [ CAHPL ] hereby requests an Advance in the principal amount of _ _ _ _ _ _ _ Australian Dollars on the date hereof which is a Banking Day.
34. There were no financial or operational covenants in the agreement that might have bound CAHPL to conduct its business or to behave in any particular way. No security was provided by CAHPL. Chevron did not provide a guarantee.
35. Funds were drawn down in two tranches, on 6 June and 26 August 2003. I will treat the receipt of funds in Australian dollars. Thus the rights, benefits, privileges and facilities acquired were the rights under section 3.4 to prepay the facility and the funds in Australian dollars. Those funds, however, were not a gift, nor a purchase price; they constituted a loan. Merely to describe the property as money or funds (in whatever currency) is inadequate for the purpose of hypothesising an arm ' s length transaction. One must characterise the transaction in order to identify the property and how it is acquired and for what expected consideration. It can be accepted that the obligation to repay is not a right, benefit, privilege or facility; rather it is an obligation. Nevertheless, it is part of the essential character of the transaction attaching to the funds provided under the agreement, at the discretion of CFC. The obligation to repay is what gives the property its character as a loan. At the least, the property here was a five year loan.
36. There are a number of other features of the commercial transaction that were said by CAHPL to be part of the property acquired - the absence of security granted to CFC by CAHPL or anyone else, and the absence of financial or operational covenants given by CAHPL. These features were said to be part of the composition of the property acquired, for a consideration that was limited to the interest payable. In CAHPL ' s submission the consideration was the interest rate and the property was the borrowing under, and pursuant to, all the terms of the Credit Facility.
37. The lack of security provided by CAHPL was said to be explained by CAHPL ' s inability to grant security over the production assets held by its subsidiaries. For present purposes let that be accepted. This absence of security could be invoked to describe or characterise the property acquired as an unsecured five year loan. The lack of financial and operational covenants could be used to describe the
ATC 19616freedom of commercial action by the borrower after receipt of the funds. These features amount to a lack of existence or an absence of the grant of some right or security, or the lack of a promised obligation, to the lender. Such a lack of existence or absence is not property (including services) acquired from the lender. The ability or willingness to grant security (from the borrower or a third party) or to give a promise that may better secure or make safe the lender ' s position are most readily conceived of, or characterised, as part of what the borrower is willing or able to provide to obtain the loan at an interest or discount rate that is commercially acceptable, that is as part of the consideration.
38. These features may arise in the transaction (or not, as the case may be) for different reasons. For instance, financial or operational covenants by the borrower as to how it will conduct its business, how it will deal with its assets and, whether or not, or to what extent, it will in the future utilise its asset base to secure other lenders are commercial considerations one might expect in a loan made at arm ' s length if the lending were commercial; but which one would not necessarily expect in an intra-group borrowing where the lender is protected by the common control of the affairs of the group, including those of the borrower. There may be an infinite variety of such covenants, the presence or absence of which, at least as between arm ' s length parties, affects risk and thus price or monetary consideration. On the evidence here, their absence was not dictated by any commercial or operational imperatives; rather their absence can be explained by the protection given to the lender by common control. Likewise the absence of security given by CAHPL or the absence of a parent company guarantee can be explained by a lack of commercial or legal capacity (the former) and intra-group choice (the latter).
39. These aspects of the transaction in question, all being the lack of existence of promises to the lender or rights granted to the lender, are best analysed as part of the universe of what could possibly have been, or was, given in return for the property in question, being the five year loan in the sum of AUD 2.5 billion. That is, they are best seen in the universe of the subject of consideration: that is had they been given, they would have formed part of it.
40. One then comes to s 136AA(3)(d). This is the expression of the arm ' s length consideration to be deemed to be the consideration given or agreed to be given in respect of the acquisition for the purpose of s 136AD(3). This deemed consideration given or agreed to be given replaces, for taxation purposes, the actual consideration given or agreed to be given by the taxpayer. So, for s 136AA(3)(d), one asks what consideration might reasonably be expected to have been given or agreed to be given between independent parties in respect of the acquisition of the right or benefit of a five year loan with a right in the borrower to prepay at any time.
of his reasons, the primary judge set out a statement of Middleton J at first instance in
SNF (Australia) Pty Ltd v Commissioner of Taxation [ 2010 ] FCA 635 ; 79 ATR 193 at [ 44 ] which was approved by the Full Court on appeal in that case (
Commissioner of Taxation v SNF (Australia) Pty Ltd [ 2011 ] FCAFC 74 ; 193 FCR 149 at [ 121 ] - [ 122 ] ) as follows:
The essential task is to determine the arm ' s length consideration in respect of the acquisition. One way to do this is to find truly comparable transactions involving the acquisition of the same or sufficiently similar products in the same or similar circumstances, where those transactions are undertaken at arm ' s length, or if not taken at arm ' s length, where suitable adjustment can be made to determine the arm ' s length consideration that would have taken place if the acquisition was at arm ' s length.
42. This passage contains some of the subtleties within the essential task of determining the arm ' s length consideration for s 136AA(3)(d). There is or may be a comparison involved; there may be the same or similar products; there may be the same or similar circumstances; there may be a market for fungible products; some adjustment of differences may be required. But the ultimate purpose is to determine the consideration that would have been given (that is implicitly, by the taxpayer) had there not been a lack of independence in the transaction. How one comes to that assessment and the relationship between the posited arm ' s length
ATC 19617dealing and what in fact occurred will depend on the circumstances at hand, and a judgment as to the most appropriate, rational and commercially practical way of approaching the task consistently with the words of the statutory provision, on the evidence available. There may be a free market into which disembodied independent third parties and the taxpayer alike could enter for substitutable or fungible goods; or there may be a market of sorts in which individually reached pricing will be available depending upon the precise characteristics of the party seeking to avail itself of the market. Given the great variety of commercial circumstances to which the provision may apply, it would be wrong either to approach the interpretation of the provisions pedantically or to dictate a rigid or fixed approach to the task of determining the arm ' s length commercial consideration.
43. There is no reason derived from the language of s 136AA(3)(d) why the hypothesis based on independence should, of necessity, do other than assess what the taxpayer or a person in the position of the taxpayer would be expected to give by way of consideration in respect of the acquisition of the property to a party independent from it. The independence hypothesis does not necessarily require the detachment of the taxpayer, as one of the independent parties, from the group which it inhabits or the elimination of all the commercial and financial attributes of the taxpayer being part of the circumstances that gave the commercial shape to the property the subject of the acquisition and that may be relevant to the consideration for the property. There is discussion in the Full Court in SNF 193 FCR at 179 - 181 [ 95 ] - [ 102 ] and in particular at [ 96 ] - [ 99 ] (the latter paragraphs being set out by the primary judge at [ 65 ] of his reasons) about the circumstances in which one can or should hypothesise the taxpayer as part of the exercise under s 136AA(3)(d). The expression of the matter by the Full Court in SNF 193 FCR at 179 - 180 [ 96 ] - [ 99 ] must be read in the context of the argument of the Commissioner and the circumstances of the case. The submissions of the Commissioner in that case which concerned the ascertainment of a market price (which were rejected by the Court) can be seen recorded in 193 FCR at 153 [ 9 ] :
[ T ] he concept of " arm ' s length consideration " in s 136AD(3) required an examination of transactions " between independent parties dealing at arm ' s length " (s 136AA) and those words, viewed in their full context, required, indeed forbade any other consideration but, comparable transactions in which the purchasers shared each and every quality of the taxpayer bearing on price save for the solitary fact of its having been under the control of SNF France. So viewed, the only comparables lawfully permitted by s 136AD(3) were those in which the putative purchasers were themselves making losses; the failure of the taxpayer to search for and recruit comparable purchasers of that kind meant that it had proved nothing of value and that failure, in turn, was fatal where the taxpayer admittedly bore the onus of proof.
44. In SNF , the Commissioner ' s submissions were directed to the asserted inadmissibility of evidence of certain allegedly comparable transactions because the parties did not have the same features as the taxpayer, being a history of making losses. Some of the language in SNF may be seen to be broader than was necessary to deal with the arguments and controversy in question. I do not take from SNF any requirement for a rigid or fixed approach to the place of the circumstances of the taxpayer or the party posited in the position of the taxpayer, in particular, here, its position in the group of which the other party to the actual transaction was a member also. Naturally, the one fixed and rigid proposition is that the parties to the dealing posited by s 136AA(3)(d) must be independent from each other - mutually independent. It does not follow that the party in the position of the taxpayer in the real transaction (here the borrower) must be disassociated in the hypothesis from its place in the group for whose interests it was borrowing. I do not read SNF as requiring the utter disembodiment of both parties from the circumstances of reality if one is seeking to understand not what a market price for goods was but the consideration that would be given for acquiring a characterised loan from an independent lender. The fundamental purpose of the hypothesis is to understand what the taxpayer, CAHPL, or a person in the position of
ATC 19618the taxpayer and in its commercial context would have given by way of consideration in an arm ' s length transaction.
45. At [ 76 ] the primary judge said the following:
What is required, in my opinion, is to depersonalise the agreement to acquire so as to make it, hypothetically, between independent parties dealing at arm ' s length, but not so as to alter the property acquired. Division 13 of the ITAA 1936 does not, in my opinion, require or authorise the creation of an agreement with terms different from those of the actual agreement, other than the consideration. I reject the Commissioner ' s submission that the use of the word " an " in s 136AA(3)(d) showed that terms different from those of the actual agreement could be taken into account. In my opinion, the indefinite article is used because the agreement there referred to is the hypothetical agreement. By way of contrast, references earlier in the same paragraph are to " the acquisition of property " , " the consideration " , " of the acquisition " and " the property " .
The paragraph contains a number of important ideas. The first sentence refers to the depersonalisation of the agreement that was entered into. To a degree, the task required by s 136AA(3)(d) necessitates this - it is an hypothesis; but that does not of its nature require the complete " depersonalisation " of the hypothesis from the structure of the facts and relationship present in the reality. The degree and extent of the depersonalisation will be dictated by what is appropriate to the task of determining an arm ' s length consideration - that is one that satisfactorily replaces what the taxpayer gave by what it should be taken to have given had it been independent of its counterparty.
46. Secondly, the primary judge said that the property should not be altered in the hypothesis. The terms of ss 136AD and 136AA make that clear. That, however, is not to say that there must be no difference in the agreement as a whole. It will depend upon how the property is identified - how it is characterised. Thus, I do not consider the second sentence to be correct for all purposes. As will be seen in due course, the statutory hypothesis in s 136AA(3)(d) is one directed to a reasonable expectation as to what consideration would be given, implicitly by the party acquiring the property, that is the party in the position of the taxpayer. Whilst the property remains the same, what consideration would be given for it in a real world of independence may lead, depending upon the evidence, to the reasonable expectation of different behaviour on the part of the person in the position of the taxpayer in relation to the giving of consideration for the property and of behaviour by another or others in relation to the dealing, and which would reflect rational commercial behaviour in the environment of an arm ' s length transaction. Such behaviour may affect the terms of the hypothetical agreement in question to the extent that they can be seen as part of the consideration.
47. Thus the questions are what is the property, and what, in all the circumstances, bearing in mind the evidence, would one reasonably expect the consideration to be given to acquire the property, and so take the place of the consideration actually given by the taxpayer.
48. As the primary judge said at [ 78 ] of his reasons, the hypothesis must be made to work. This is particularly the case where the agreement in question is not easily commercially replicated or posited in the real world. That may be so because the property may be such as to be of special particularity to the taxpayer or to the group in which the taxpayer is situated, or the agreement may have been structured with tax minimisation or " tax-efficiency " in mind such that it may be constructed in a way divorced from how such would be likely to appear as a dealing between independent parties. That the hypothesis must be made to work, if it can, is also to be taken from the commercially rational nature of the task - the property, the acquisition, the consideration are to be seen in their relationship to each other by reference to what can be reasonably expected, assuming independent commercial parties.
ATC 19619These considerations give force to the correctness of the primary judge ' s expressed views at [ 79 ] - [ 82 ] where he said:
One issue of statutory construction between the parties was whether s 136AA(3)(d) required that the borrower as an independent party be considered as a stand-alone company. In my opinion, the answer is " no " as this would be to use the word " independent " as if it meant entirely independent rather than, in a case such as the present, independent of the lender.
For present purposes, it is useful to adopt the tool of analysis that, in the hypothetical, the hypothetical independent parties have the characteristics relevant to the pricing of the loan so as to enable the hypothesis to work. Thus, for example, the borrower will be an oil and gas exploration and production (E & P) subsidiary.
This has implications for the interest rate, which would change depending on the borrower ' s credit rating (and on the rating of the loan agreement), and on whether or not the interest rate should reflect the absence of security, the absence of guarantee or the absence of covenants given by a borrower for the protection of a lender.
Implicit in this approach is that the word " consideration " in s 136AA(3)(d), which is not exhaustively defined but is extended by s 136AA(3)(b), should not be taken to mean more than it otherwise would, in context. This means that I do not construe " consideration " in s 136AA(3)(d) to mean the terms of the contract which do no more than affect the interest rate. For example, although the interest rate will be affected by the financial viability of the borrower, I do not construe the word " consideration " as extending to those characteristics.
50. The independence required is independence of the parties to the agreement from each other; it does not require any other hypothetical relationship; nor does it necessarily require the removal of characteristics of the party as the borrower that take it away from identity with the taxpayer in character or situation.
51. Also underpinning the correctness of the approach of the primary judge in [ 79 ] - [ 82 ] is the recognition that the task is to determine a consideration appropriate to replace that actually given by the taxpayer in order better to assess the affairs of the taxpayer for taxation.
52. At [ 83 ] and following the primary judge discussed the contending submissions before him about the meaning of the word " consideration. " These arguments were rehearsed before us on appeal. There was a tendency to approach the question from a theoretical a priori position as if it were possible to conclude logically that a kind of term of an agreement (such as the provision of security by the borrower over its assets) was capable of necessary classification as " property " (as an aspect of a secured loan) or as " consideration " (as part of what is given for an accommodation or loan, not more narrowly characterised as a secured loan). These questions are best approached through the process of characterisation of the agreement and facts in question, bearing in mind the ultimate task - obtaining a commercially rational substitute based on arm ' s length independence for a non-arm ' s length consideration in fact given, so as to bring the taxation affairs of the taxpayer into conformity with commercial rationality based on independence of action.
53. The appellant approached the task dictated by s 136AA(3)(d) as it had before the primary judge by identifying the task at hand to price the interest rate that would be paid by a stand- alone borrower from an independent lender for a loan structured in the identical terms to the credit facility. This was based on a submission that the property and agreement must remain identical and only the consideration in the form of the interest rate could be the subject of adjustment by reference to what could be reasonably expected.
54. Thus, CAHPL, as applicant called witnesses with experience in lending and financing to say that a five year unsecured loan of AUD 2.5 billion with a borrower with the financial attributes of CAHPL giving no financial or operational covenants would likely be priced at above 9 % . The primary judge found certain aspects of that evidence unsatisfactory; but, if the correct task was being
ATC 19620essayed by CAHPL one could well accept, without difficulty, that a stand-alone company with CAHPL ' s balance sheet which borrowed AUD 2.5 billion unsecured for five years with no operational or financial covenants would pay a significant interest rate, and in all likelihood on the evidence, above 9 % .
55. That approach, however, almost dooms to failure the application of Div 13 if its task is to substitute commercial reality based on independence, for intra-group reality based on group control. All one would have to do would be to constrain internally the transaction to give the highest price and include or omit terms of the agreement that would never be included or omitted in an arm ' s length transaction and which are not driven or dictated by commercial or operational imperatives, as the foundation for assessing an hypothesised arm ' s length consideration. Such unrealistic inflexibility would undermine the sensible operation of the Division by a rigid construction of the hypothesis in a shape and form controlled by the taxpayer. The difficulty is not alleviated by giving s 136AD(4) a role to play in such circumstances.
56. The appellant submitted to the primary judge that the pricing of the loan in the hypothesised borrowing from the independent lender must take into account the assets, risks and functions of CAHPL which informed the likelihood of CAHPL repaying principal and interest, but not otherwise than as a stand-alone entity. He dealt with the evidence of the witnesses on this question.
57. The Commissioner submitted to the primary judge that the correct approach was that all the facts and circumstances of the parties (other than their non-arm ' s length relationship) should be imported into the hypothesis. Of particular relevance for this submission was Chevron as the parent and the likelihood of its giving a guarantee to the lender of the borrower ' s obligations.
58. The approach of the primary judge at [ 499 ] and [ 501 ] - [ 502 ] of his reasons was to accept neither of these submissions in its entirety, saying:
In my opinion, the approach in the present circumstances should go past shorthand expressions such as " reconstruction of the transaction " to address an agreement between two parties independent of each other, neither party being an actual party to the actual loan. I would add that, although the construct is hypothetical, this does not mean that the exercise should depart from reality more than is necessary for the hypothesis. In my view, the exercise, although hypothetical, should remain close to undertaking the actual loan. Thus I would give little weight to factors which a lender and a borrower, at arm ' s length to each other, in the circumstances would not take into account. I do not accept the Commissioner ' s submission that ss 136AD and 136AA ask what form an agreement might have taken if it had been negotiated by entities dealing with each other at arm ' s length. In my opinion, this construction does not centre on the identification of the property, as I understood how it was put, but on the use of the indefinite article in the expression " if the property had been acquired under an agreement between independent parties ... " In my opinion, " an agreement " does not, in context, mean that the hypothetical agreement is to have the property acquired as its only matter coincident with the actual agreement.
It is easy to see, at one end, that the loan is one made at a certain time, in a certain amount, for a certain period, at a certain interest rate and with or without a certain security. At the other end, it is more difficult to apply the hypothesis required by s 136AD to a hypothetical borrower in place of CAHPL. Here, it seems to me, the statutory hypothesis must include what has been shown on the evidence to be relevant in the market in question. For example, if the evidence showed that a lender would take into account in pricing the loan that a borrower independent from the lender was in a particular industry and that the creditworthiness of a borrower in that industry was affected by particular matters going to its capacity to repay the loan and the likelihood that it would do so, then those factors would be relevant. It must therefore
ATC 19621be a factor that the borrower was in the oil and gas E & P industry.
Another related question is whether the statutory hypothesis permits or requires to be taken into account that a borrower, the hypothetical borrower not being the taxpayer, has at the time of the loan certain financial resources which the lender would regard as relevant to the pricing of the loan. In principle, the answer must be " yes " . In the present case, does the fact that the non-arm ' s length nature of the Credit Facility Agreement stems from the common ownership of the borrower and the lender by CVX point to a different answer? Of itself, in my view the answer is " no " . But that does not have the consequence that the particular relationship between CVX and CAHPL is determinative in the context of the statutory hypothesis. That would be to import the actual entity, CAHPL, into the hypothesis contrary to the decision of the Full Court in
SNF 193 FCR 149 .
59. Nevertheless, the primary judge had said at [ 87 ] of his reasons:
Applying ss 136AD(3) and 136AA(3) of the ITAA 1936 in the present case, I accept that the promises by the borrower, CAHPL, were the consideration given or agreed to be given by it. I also accept that the wide definitions of " agreement " and of " acquire " in s 136AA(1) mean that the acquisition of property by a taxpayer under an international agreement is not limited to acquisitions made pursuant to contract. In the present case I find that CAHPL did not give security or operational and financial covenants, which would have affected that part of the consideration which was the interest rate: the interest rate was higher in the absence of those promises or covenants. If the property had been acquired under an agreement between independent parties dealing at arm ' s length with each other, I find that the borrower would have given such security and operational and financial covenants and the interest rate, as a consequence, would have been lower. The limited scope of the consideration given or agreed to be given by CAHPL resulted in the consideration which CAHPL did give, the promise to pay the interest rate, exceeding the arm ' s length consideration in respect of the acquisition. It follows, on that basis, that the applicant has not shown that the arm ' s length consideration assessed by the respondent Commissioner was excessive.
60. A number of things arise from this. First, the primary judge thought himself to be constrained by the Full Court in SNF not to give determinative effect to the CAHPL/Chevron relationship. For the reasons that I have given, that takes the Full Court in SNF too far. I do not see why the hypothesis for s 136AA(3)(d) should not include a borrower in the position of CAHPL with its balance sheet in a group the parent of which is a company such as Chevron . Secondly, his Honour concluded that consideration in the nature of security or operational covenants would have been given. There may have been a question, on the evidence, whether CAHPL was in a position to give security. Certainly, on the evidence, the reasonable expectation would be that Chevron or a company in Chevron ' s position would give a guarantee; and so security and any covenants given by CAHPL or the company in its position would be of no relevant consequence. The evidence did not reveal any likelihood of Chevron charging a fee for such guarantee.
61. For the comparison here to be of utility one would compare what the taxpayer, CAHPL, gave (for s 136AD(3)(c)) and what it, or a borrower in its position, could reasonably be expected to give if dealing with an arm ' s length lender.
62. Thus one asks: What is the consideration that CAHPL or a borrower in its position might reasonably be expected to have given to an independent lender if it had sought to borrow AUD 2.5 billion for five years? The answer to this question is to be found in the evidence. Here the borrower in the independence hypothesis is a company in the position of CAHPL. It is part of a group the policy of the parent of which was to borrow externally at the lowest rate possible. Further, it was usual commercial policy of the parent of the group for a parent company guarantee to be provided by it (the parent) for external borrowings by
ATC 19622subsidiaries. In those circumstances, the consideration that might reasonably be expected to be given by a company in the position of the taxpayer CAHPL would be an interest rate hypothesised on the giving of a guarantee of CAHPL ' s obligations to the lender by a parent such as Chevron .
63. For the hypothesis for the purposes of s 136AA(3)(d) to include the parent company guarantee is not to alter the property the subject of an acquisition by the taxpayer. The task is to identify from the evidence the consideration that might reasonably be expected to have been given or agreed to be given by a party in the position of CAHPL (the taxpayer) in respect of obtaining a five year loan compared to the consideration actually given by the taxpayer. Part of the assessment of what consideration is reasonably to be expected to be given are the facts that are likely or reasonably to be expected to attend such a transaction with an independent third party. If the evidence reveals (as it did here) that the borrower is part of a group that has a policy to borrow externally at the lowest cost and that has a policy that the parent will generally provide a third party guarantee for a subsidiary that is borrowing externally, there is no reason to ignore those essential facts in order to assess the hypothetical consideration to be given.
64. The property has not changed. As far as the borrower is concerned the loan remains repayable in five years. The consideration that might reasonably be expected to have been given or agreed to be given by an independent party in the position of CAHPL (the taxpayer) in these circumstances will be the interest rate charged by the lender for the borrowing taking into account the guarantee, not given by the taxpayer, but given by the parent in the position of Chevron .
65. There may be factual circumstances where the attributes of the taxpayer, or its position in a group of companies, or the nature of the subject matter of the transaction make it appropriate to assess a consideration for s 136AA(3)(d) as one struck between two disembodied parties without some or all of the attributes of the taxpayer. Ultimately, however, the purpose of the hypothesis is to identify what should be deemed to be the consideration instead of that actually given by the taxpayer in respect of the acquisition that occurred. Here, the ascertainment of that consideration naturally and rationally contemplates a company in the position of CAHPL with its attributes, including its inhabiting of the Chevron group, dealing at arm ' s length with an independent lender.
66. This approach makes it strictly unnecessary to canvass each of the appellant ' s complaints about the primary judge ' s treatment of its witnesses. On any view, whether the loan was in Australian or United States dollars, the ascertainment of the consideration for s 136AA(3)(d) with a parent company guarantee from a parent such as Chevron will conclude the question that the appellant has not shown the assessments under Div 13 to be excessive.
Sub-division 815-A of the 1997 Act
67. Sub-division 815-A concerns cross-border transfer pricing.
68. The relevant object of Sub-div 815-A is set out in s 815-5(a) as follows:
The object of this Subdivision is to ensure the following amounts are appropriately brought to tax in Australia, consistent with the arm ' s length principle:
- (a) profits which would have accrued to an Australian entity if it had been dealing at * arm ' s length, but, by reason of non-arm ' s length conditions operating between the entity and its foreign associated entities, have not so accrued;
69. Section 815-10(1) empowers the Commissioner to make a determination under s 815-30(1) for the purposes of negating a transfer pricing benefit. Relevantly here, the determination by the Commissioner was under s 815-30(1)(a) and was " of an amount by which the taxable income of the entity for an income year is increased. "
ATC 19623Section 815-10(1) only applies, however, if the treaty requirement as set out in s 815-10(2) is met:
(2) However, this section only applies to an entity if:
- (a) the entity gets the * transfer pricing benefit under subsection 815-15(1) at a time when an * international tax agreement containing an * associated enterprises article applies to the entity; or
- (b) the entity gets the transfer pricing benefit under subsection 815-15(2) at a time when an international tax agreement containing a * business profits article applies to the entity.
71. Here, relevantly for s 815-10(2)(a) there was an international tax agreement (being the Convention Between the Government of Australia and the Government of the United States of America For the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income done at Sydney on 6 August 1982, as amended (the US Treaty)) in place at the time. An associated enterprises article is defined by ss 995(1) and 815-15(5) of the 1997 Act as:
- (a) Article 9 of the United Kingdom convention (within the meaning of the International Tax Agreements Act 1953 ); or
- (b) a corresponding provision of another * international tax agreement.
72. Article 9(1) of the US Treaty is in substantially the same terms as Art 9 of the United Kingdom convention. Thus, there was at the time of the events in question an international tax agreement containing an associated enterprises article that applied to the entity, CAHPL.
73. Article 9(1) of the US Treaty is in the following terms:
- (a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
- (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,
and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
74. Whether an entity gets a transfer pricing benefit depends on the satisfaction of the test in s 815-15 (relevantly, here, s 815-15(1)) assisted by certain secondary materials referred to in s 815-20.
75. Section 815-15(1) is in the following terms:
815-15 When an entity gets a transfer pricing benefit
Transfer pricing benefit - associated enterprises
(1) An entity gets a transfer pricing benefit if:
- (a) the entity is an Australian resident; and
- (b) the requirements in the * associated enterprises article for the application of that article to the entity are met; and
- (c) an amount of profits which, but for the conditions mentioned in the article, might have been expected to accrue to the entity, has, by reason of those conditions, not so accrued; and
- (d) had that amount of profits so accrued to the entity:
- (i) the amount of the taxable income of the entity for an income year would be greater than its actual amount; or
- (ii) the amount of a tax loss of the entity for an income year would be less than its actual amount; or
- (iii) the amount of a * net capital loss of the entity for an income year would be less than its actual amount.
ATC 19624The amount of the transfer pricing benefit is the difference between the amounts mentioned in subparagraph (d)(i), (ii) or (iii) (as the case requires).
76. Section 815-20 is concerned with " cross-border transfer pricing guidance " . It is in the following terms:
815-20 Cross-border transfer pricing guidance
(1) For the purpose of determining the effect this Subdivision has in relation to an entity:
- (a) work out whether an entity gets a * transfer pricing benefit consistently with the documents covered by this section, to the extent the documents are relevant; and
- (b) interpret a provision of an * international tax agreement consistently with those documents, to the extent they are relevant.
(2) The documents covered by this section are as follows:
- (a) the Model Tax Convention on Income and on Capital, and its Commentaries, as adopted by the Council of the Organisation for Economic Cooperation and Development and last amended on 22 July 2010;
- (b) the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, as approved by that Council and last amended on 22 July 2010;
- (c) a document, or part of a document, prescribed by the regulations for the purposes of this paragraph.
(3) However, a document, or a part of a document, mentioned in paragraph (2)(a) or (b) is not covered by this section if the regulations so prescribe.
(4) Regulations made for the purposes of paragraph (2)(c) or subsection (3) may prescribe different documents or parts of documents for different circumstances.
77. The effect of s 815-20(1) is modified by s 815-5 of the Income Tax (Transitional Provisions) Act 1997 (Cth) which states that despite s 815-20, for any year of income before 1 July 2012, the documents to which s 815-20 is taken to be referring are the OECD Model Tax Convention on Income and Capital and the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, in each case as last amended before the start of the income year. By reason of this provision the relevant OECD Transfer Pricing Guidelines were those of 1995. The parties did not specifically refer the Court to the OECD Model Tax Convention of any year, but that Model Convention formed the basis for the wording of Art 9 of the UK Convention and the US Treaty.
78. One must therefore turn to s 815-15 and Art 9 of the US Treaty, assisted by the 1995 Guidelines in order to ascertain whether an entity, here CAHPL, has got a transfer pricing benefit.
79. Section 815-15(1)(a) is satisfied - CAHPL is an Australian resident.
81. Paragraph (c) of s 815-15(1) is central. It posits a causal relationship between the " conditions " referred to in Art 9 and " an amount of profits which ... might have been expected to accrue to the entity " but which has not so accrued " by reason of those conditions " .
82. The notion of conditions in Art 9 refers to the circumstances or environment that can be seen to operate between the two enterprises in their commercial or financial relations which are different to the circumstances or environment which would operate between independent enterprises. The word " conditions " is broad and flexible. The primary judge, at [ 582 ] - [ 583 ] of his reasons, referred to a number of individual conditions identified by the parties. Looking at the facts here one can, conformably with the way the respondent identified various conditions, see
ATC 19625conditions operating between CAHPL and CFC which differ from conditions that might be expected to operate between CAHPL and an independent lender. Those conditions included the direction of the affairs of both companies and their relationship in respect of the on-lending of the funds raised by CFC by Chevron Treasury, in particular, by Mr Krattebol, such direction being in accordance with the best interests of the Chevron group, and in particular to bring about the most efficient corporate capital structure and the best after tax result for the Chevron group.
83. That condition or these conditions operated between CAHPL and CFC in their financial relations and was or were manifested in the Credit Facility. The inquiry then for the purposes of s 815-15(1)(c) is what " amount of profits " might have been expected to accrue, but did not by reason of the conditions.
84. The understanding of the nature of that causal inquiry is assisted by the discussion in the OECD 1995 Guidelines (the Guidelines). Paragraph 6 of the Preface to the Guidelines sets out the general approach:
In order to apply the separate entity approach to intra-group transactions, individual group members must be taxed on the basis that they act at arm ' s length in their dealings with each other. However, the relationship among members of an MNE group may permit the group members to establish special conditions in their intra-group relations that differ from those that would have been established had the group members been acting as independent enterprises operating in open markets. To ensure the correct application of the separate entity approach, OECD Member countries have adopted the arm ' s length principle, under which the effect of special conditions on the levels of profit should be eliminated.
85. The arm ' s length principle is set out in Art 9 of the OECD Model Tax Convention on Income and Capital.
86. The Guidelines discuss the arm ' s length principle in Ch 1. In the discussion of Art 9, the Guidelines state at [ B.1.6 ] :
By seeking to adjust profits by reference to the conditions which would have obtained between independent enterprises in comparable transactions and comparable circumstances, the arm ' s length principle follows the approach of treating the members of an MNE group as operating as separate entities rather than as inseparable parts of a single unified business. Because the separate entity approach treats the members of an MNE group as if they were independent entities, attention is focused on the nature of the dealings between those members.
87. The Guidelines in Section B, in dealing with the statement of the arm ' s length principle, discuss at [ B.1.10 ] the practical difficulty in applying the arm ' s length principle that may arise from the fact that associated enterprises may engage in transactions that independent enterprises would not engage in. For instance, an independent entity may not be willing to sell or licence some valuable intellectual property or know-how. Some of the discussion is illuminating:
[ T ] he owner of an intangible may be hesitant to enter into licensing arrangements with independent enterprises for fear of the value of the intangible being degraded. In contrast, the intangible owner may be prepared to offer terms to associated enterprises that are less restrictive because the use of the intangible can be more closely monitored. There is no risk to the overall group ' s profit from a transaction of this kind between members of an MNE group. An independent enterprise in such circumstances might exploit the intangible itself or license it to another independent enterprise for a limited period of time (or possibly under an arrangement to adjust the royalty).
88. Section C of the Guidelines concerns guidance for applying the arm ' s length principle. The section begins (at [ C.1.15 ] ) with a discussion of comparability as follows:
Application of the arm ' s length principle is generally based on a comparison of the conditions in a controlled transaction with the conditions in transactions between independent enterprises. In order for such comparisons to be useful, the economically relevant characteristics of the situations being compared must be sufficiently comparable. To be comparable means that none of the differences (if any)
ATC 19626between the situations being compared could materially affect the condition being examined in the methodology (e.g. price or margin), or that reasonably accurate adjustments can be made to eliminate the effect of any such differences. In determining the degree of comparability, including what adjustments are necessary to establish it, an understanding of how unrelated companies evaluate potential transactions is required. Independent enterprises, when evaluating the terms of a potential transaction, will compare the transaction to the other options realistically available to them, and they will only enter into the transaction if they see no alternative that is clearly more attractive.
89. The Guidelines in a section beginning at [ C.1.36 ] discuss the recognition of the actual transaction undertaken. The whole of [ C.1.36 ] - [ C.1.38 ] , though long, should be set out:
A tax administration ' s examination of a controlled transaction ordinarily should be based on the transaction actually undertaken by the associated enterprises as it has been structured by them , using the methods applied by the taxpayer insofar as these are consistent with the methods described in Chapters II and III. In other exceptional cases, the tax administration should not disregard the actual transactions or substitute other transactions for them. Restructuring of legitimate business transactions would be a wholly arbitrary exercise the inequity of which could be compounded by double taxation created where the other tax administration does not share the same views as to how the transaction should be structured.
However, there are two particular circumstances in which it may, exceptionally, be both appropriate and legitimate for a tax administration to consider disregarding the structure adopted by a taxpayer in entering into a controlled transaction . The first circumstance arises where the economic substance of the transaction differs from its form. In such a case the tax administration may disregard the parties ' characterisation of the transaction and re-characterise it in accordance with its substance. An example of this circumstance would be an investment in which an associated enterprise in the form of an interest-bearing debt when, at arm ' s length, having regard to the economic circumstances of the borrowing company, the investment would not be expected to be structured in this way. In this case it might be appropriate for a tax administration to characterise the investment in accordance with its economic substance with the result that the loan may be treated as a subscription of capital. The second circumstance arises where, while the form and substance of the transaction are the same, the arrangements made in relation to the transaction, viewed in their totality, differ from those which would have been adopted by independent enterprises behaving in a commercially rational manner and the actual structure practically impedes the tax administration from determining an appropriate transfer price. An example of this circumstance would be a sale under a long-term contract, for a lump sum payment, of unlimited entitlement to the intellectual property rights arising as a result of future research for the term of the contract (as previously indicated in paragraph 1.10). While in this case it may be proper to respect the transaction as a transfer of commercial property, it would nevertheless be appropriate for a tax administration to conform the terms of that transfer in its entirety (and not simply by reference to pricing) to those that might reasonably have been expected had the transfer of property been the subject of a transaction involving independent enterprises. Thus, in the case described above it might be appropriate for the tax administration, for example, to adjust the conditions of the agreement in a commercially rational manner as a continuing research agreement.
In both sets of circumstances described above, the character of the transaction may derive from the relationship between the parties rather than be determined by normal commercial conditions and may have been structured by the taxpayer to avoid or minimise tax. In such cases, the totality of its terms would be the result of a condition that would not have been
ATC 19627made if the parties had been engaged in arm ' s length dealings. Article 9 would thus allow an adjustment of conditions to reflect those which the parties would have attained had the transaction been structured in accordance with the economic and commercial reality of parties dealing at arm ' s length.
90. The above discussion illuminates that the causal test in s 815-15(1)(c) based on Art 9 is a flexible comparative analysis that gives weight, but not irredeemable inflexibility, to the form of the transaction actually entered between the associated enterprises. A degree of flexibility is required especially if the structure and detail of the transaction has been formulated by reference to the group relationship and a " tax-effective " outcome (even if, as here, one that is not said to be illegitimate). The form of that transaction may, to a degree, be altered if it is necessary to do so to permit the transaction to be analysed through the lens of mutually independent parties.
91. There is nothing in the Guidelines that requires other than the independent status of the enterprises from each other in the transaction. Thus, to paraphrase the last sentence of [ C.1.38 ] , Art 9 (and so s 815-15(1)(c)) would allow an adjustment of conditions to reflect the conditions which the parties would have attained had the transaction been structured in accordance with commercial reality with the parties to the transaction dealing at arm ' s length.
92. The conditions operating between CAHPL and CFC if they were independent of each other would not include the direction by Chevron Treasury of the officers of both for the benefit of the group as a whole. The conditions between mutually independent CFC and CAHPL could, however, include CAHPL situated within the Chevron group and CAHPL being subject to the direction of Chevron for the benefit of the Chevron group.
93. In such circumstances, were CAHPL seeking to borrow for five years on an unsecured basis with no financial or operational covenants from an independent lender, in order to act rationally and commercially and conformably with the interests of the Chevron group to obtain external funding at the lowest possible cost consistently with any relevant operational considerations, it would do so with Chevron providing a parent company guarantee, if such were available.
94. In the light of the evidence as to Chevron ' s policy concerning external funding and its willingness to provide a guarantee to achieve that end the above is the natural and commercially rational comparative analysis when one removes the controlled conditions operating between CAHPL and CFC and replaces them with the condition of mutual independence.
96. One then must assess whether an amount of profits has not accrued thereby. The borrowing cost of CAHPL would have been less than it was under the Credit Facility; thus CAHPL ' s deductions against operating revenue would have been less, and operating profit conformably greater. There would, however, have been a reduced inflow of (non-assessable) dividends. If one looks to the whole income year and compares the profits of CAHPL in the two scenarios one may not see a difference in amount of profits, although the two amounts would be differently formulated. In the actual transaction the profits are made up of lower (assessable) operating profit and higher (non-assessable) dividend income from CFC. In the hypothesised transaction the same level of profits are made up of higher (assessable) operating profit and lower (non-assessable) dividend income from CFC. There is, however, no mandate or requirement to look at the profit position of CAHPL only at year end. In point of fact, an amount of operating profit
ATC 19628would have accrued with lower interest deductions; and turning to s 815-15(1)(d) had that amount of profits so accrued the amount of its taxable income would have been greater than its actual amount.
97. The appellant must therefore have failed to show the assessments based on it to be excessive.