Edited version of your written advice

Authorisation Number: 1013124164499

Date of advice: 29 November 2016

Ruling

Subject: Residency

Question 1

Will the commissioner consider Company A to be a resident of Australia for income tax purposes under subsection 6(1) of the Income Tax Assessment Act 1936 after the proposed restructure (Company A restructure)?

Answer

Yes.

Question 2

Will the Commissioner consider Company A to be a prescribed dual resident for income tax purposes under subsection 6(1) of the Income Tax Assessment Act 1936 after the proposed Company A restructure?

Answer

No.

This ruling applies for the following periods:

30 September 2017

30 September 2018

30 September 2019

30 September 2020

30 September 2021

30 September 2022

The scheme commences on:

01 October 2016

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

Company A was incorporated in Australia and is listed on the Australian Securities Exchange (ASX). Company A's registered office is located in Australia and it has a majority of Australian shareholders.

The Company A group is comprised of Company A and its controlled subsidiaries. Company A has X wholly-owned corporate subsidiaries and B controlled trusts, as follows:

(a) Company B, incorporated in Australia. The Board of Company B comprises C directors, all of whom are Australian residents for tax purposes

(b) Company C, incorporated in Australia. The Board of Company C comprises C directors, all of whom are Australian residents for tax purposes

(c) Company D, incorporated in the Country A. The Board of Company D comprises C directors, A of whom is a foreign resident for tax purposes and B of whom are Australian residents for tax purposes. Company D is expected to be wound up within the next year, and its investment in its subsidiary, Company E, transferred to its parent, Company A

(d) Company E, incorporated in the Country A. The Board of Company E comprises directors, B of whom are Country A residents for tax purposes and C of whom are Australian residents for tax purposes

(e) Company F, incorporated in the Country A. The Board of Company F comprises D directors, whom are Country A residents for tax purposes and A of whom is an Australian resident for tax purposes

(f) Company G incorporated in City C. The Board of Company G comprises E directors, B of whom are City C residents for tax purposes and B of whom are Country A residents for tax purposes

(g) Company H incorporated in Country B. The Board of Company H comprises D directors, B of whom are Country B residents for tax purposes, B of whom are Country A residents for tax purposes and A of whom is an Australian resident for tax purposes

(h) Trust A, established by Company A with an external Australian resident trustee company, and

(i) Trust B, established by Company A with an external foreign resident trustee company.

The Company A group undertakes active management of investments in Australian equities and listed property, Australian and international fixed interest, global equities, multi-asset portfolios and alternative investments, and actively manages a range of different global and regional equity investment strategies.

Company A, Company B and Company C and its controlled subsidiaries operate in Australia and are a tax-consolidated group for Australian income tax purposes.

Company D, Company E and Company F operate in the Country A and are grouped for Country A income tax purposes.

Company G operates in City C and is resident in City C for income tax purposes, while Company H operates in, and is resident of, Country B for income tax purposes.

Company A Restructure

For corporate governance reasons, Company A and Company E each wish to restructure their board arrangements so that the current directors of Company A will also become directors of Company E. This is referred to as the “Company A restructure” for the purposes of this ruling.

The day-to-day management of Company A's business will continue to occur in Australia.

Company A's Board of Directors

Under the Company A restructure, Company A's board of directors will comprise of X directors, G of whom are Australian residents for income tax purposes, and A of whom is a resident of the Country A.

Of the non-executive directors, D are residents of Australia for income tax purposes and A is a resident of the Country A for income tax purposes. The managing director is an Australian resident.

Company A's executive officer (and Managing Director) and the majority of other senior executives carry out the majority of their strategic decision making activities (in the form of board meetings) in Australia.

The non-executive directors, both Australian and Country A, carry out duties consistent with the ordinary role of a non-executive director, including providing an independent view in areas such as:

● Offer constructive challenges and contributions to the development of corporate strategy

● Scrutinise the performance of management in meeting agreed strategic goals and objectives and monitoring senior management succession planning

● Assess the adequacy of the financial information produced by the company, the financial controls and systems of risk management, and

● Consider appropriate levels of remuneration of executive directors and have a prime role in appointing, and where necessary removing, senior management and in succession planning.

Board meetings

This Company A restructure will result in Company A having C board meetings in Australia, B board meetings in the Country A and A board meeting in each of the Country B and City C.

Assumption

That Company A meets the domestic residency requirements of the Country A.

Relevant legislative provisions

Subsection 6(1) of the Income Tax Assessment Act 1936

Subsection 995-1(1) of the Income Tax Assessment Act 1997

Article 4 of the Convention between the Government of Australia and the Government of the Relevant Countries for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital gains [2003] ATS 22 (Country A Convention)

Article 4 of the Convention between the Government of Australia and the Government of the Relevant Countries for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income [1983] ATS 16 (Relevant Convention)

Article 2 of the Agreement between the Government of the Commonwealth of Australia and the Government of City C for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income [1969] ATS 14 (City C Agreement)

Article 3 of the City C Agreement

Reasons for decision

Question 1

Detailed reasoning

Subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that a person (which includes a company) is an 'Australian resident' if that person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936).

Subsection 6(1) of the ITAA 1936 relevantly defines 'resident or resident of Australia' for a company as:

… (b) a company which is incorporated in Australia, or which, not being incorporated in Australia, carries on business in Australia, and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia.

As Company A was incorporated in Australia in mid 20XX, it will continue to be a resident of Australia under subsection 6(1) of the ITAA 1936 after the Company A restructure.

Question 2

Detailed reasoning

This explanation assumes that Company A is a resident of the Country A for the purposes of the Country A domestic law.

Subsection 6(1) of the ITAA 1936 states:

prescribed dual resident means a company that satisfies either of the following conditions:

(a) the first condition is that:

(i) the company is a resident of Australia within the meaning of subsection 6(1); and

(ii) there is an agreement (within the meaning of the International Tax Agreements Act 1953) in force in respect of a foreign country; and

(iii) the agreement contains a provision that is expressed to apply where, apart from the provision, the company would, for the purposes of the agreement, be both a resident of Australia and a resident of the foreign country; and

(iv) that provision has the effect that the company is, for the purposes of the agreement, a resident solely of the foreign country;

(b) the alternative condition is that the company:

(i) is a resident of Australia within the meaning of subsection 6(1) for no other reason than that it carries on business in Australia and has its central management and control in Australia; and

(ii) it is also a resident of another country; and

(iii) its central management and control is in another country.

Because Company A was incorporated in Australia, it is a resident of Australia within the meaning of subsection 6(1) of the ITAA 1936 and therefore only the first condition of the prescribed dual resident test is relevant for consideration.

After the Company A restructure, the Company A board of directors will conduct board meetings in the Country A, Country B, City C and Australia. The following analysis assumes that Company A is a resident of the Country A for the purposes of the Country A domestic laws.

Is Company A a prescribed dual resident with regard to the Country A Convention?

Article 4(1) of the Country A Convention states that:

For the purposes of this Convention, a person is a resident of a Contracting State:

(a) in the case of the Country A, if the person is a resident of the Country A for the purposes of Country A tax; and

(b) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax.

In respect of the Country A, Company A meets the first C of the E elements of the first condition of the definition of a 'prescribed dual resident' as:

(a) Company A was incorporated in Australia and is a resident of Australia within the meaning of subsection 6(1).

(b) There is an agreement in force between the Country A and Australia (the Country A Convention) as described in section 3AAA of the International Tax Agreements Act 1953.

(c) The Country A Convention contains a provision (being Article 4(4)) that is expressed to apply where, apart from that provision, Company A would, for the purposes of the agreement, be both a resident of Australia and a resident of the Country A. This is commonly referred to as the “tiebreaker rule”.

The tiebreaker rule

Article 4(4) of the Country A Convention provides that:

Where by reason of the preceding provisions of this Article a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.

The purpose of Article 4(4) is to solve any dual residence problems which may arise pursuant to the reliance on the domestic law by Article 4(1) of the Country A Convention, cited above.

The relevant question for our purposes is whether Article 4(4) of the Country A Convention has the effect that Company A is, for the purposes of that Convention, a resident solely of the Country A. This is determined by whether the 'place of effective management' of Company A is situated in the Country A. However, the Country A Convention does not define the term 'effective management'.

Consistent with the decision of the High Court in Thiel v. FC of T 90 ATC 4717 (Thiel), the Commissioner's view, published in Taxation Ruling TR 2001/13 Income tax: Interpreting Australia's Double Tax Agreements (TR 2001/13), is that interpretation of the international tax treaties may include reference to any supplementary means of interpretation, including the OECD Commentary on the Model Tax Convention on Income and on Capital (the OECD Commentary): see paragraphs 101 through to 108 of TR 2001/13.

The 2014 OECD Commentary on Article 4 of the current Model states at paragraph 24:

. … the “place of effective management” has been adopted as the preference criterion for persons other than individuals. The place of effective management is the place where key management and commercial decisions that are necessary for the conduct of the entity's business as a whole are in substance made. All relevant facts and circumstances must be examined to determine the place of effective management. An entity may have more than one place of management, but it can have only one place of effective management at any one time.

In Wensleydale's Settlement Trustees v. IRC [1996] STC 241, Special Commissioner David Shirley made the following comments in respect of 'effective management':

I emphasise the adjective 'effective'. 'Effective' implies realistic, positive management. The 'place of effective management' is where the shots are called, to adopt a vivid transatlantic colloquialism.

In Laerstate BV v. Revenue and Customs [2009] UKFTT 209 (TC), the Tribunal noted that:

48. Neither party disagreed with the Special Commissioners' approach to the interpretation of treaties generally and their decision on the interpretation of [place of effective management] in Smallwood v HMRC [2008] STC (SCD) 209. We adopt their reasoning and conclusions, in particular the following passage:

111. There was thus some debate about whether, or to what extent, [place of effective management] differed from [central management and control]. We consider that this misses the point; the two concepts serve entirely different purposes. …

112. [Place of effective management], on the other hand, must be concerned with what happens in both states since its purpose is to resolve residence under domestic law in both states, caused for whatever reason, which could include incorporation in one state and management in the other, or different meanings of management applied in each state, or different interpretations of the same meaning of management applied in each state, or divided management. One must necessarily weigh up what happens in both states and according to the ordinary meaning to be given to the terms of the treaty in their context (to quote art 31 of the Vienna Convention on the Law of Treaties) decide in which state the place of effective management is found. … We believe 'effective' should be understood in the sense of the French 'effective' (siège de direction effective) which connotes real …

In the decision of the England and Wales Court of Appeal in Commissioner for Her Majesty's Revenue and Customs v. Smallwood and Anor [2010] EWCA Civ 778, Lord Justice Patten said of the place of effective management (POEM):

48. POEM is not defined in the DTA but was interpreted by the Special Commissioners as meaning the place which is the centre of top-level management: i.e. where the key management and commercial decisions are actually made. This is the test propounded by Professor Dr Klaus Vogel in his Commentary on the OECD Model Convention and has been adopted in German case law. It was also taken to be the correct test by the special commissioner (Mr David Shirley) in Wensleydale's Settlement Trustees v IRC [1996] STC 241.

In the same case, Lord Justice Hughes stated that:

70. On the primary facts which the Special Commissioners found at paragraphs 136-145, which are set out in the judgment of Patten LJ, I do not think that it is possible to say that they were not entitled to find that the POEM of the trust was in the Country Ain the fiscal year in question. The scheme was devised in the Country Aby Mr Smallwood on the advice of KPMG Bristol. The steps taken in the scheme were carefully orchestrated throughout from the United Kingdom, both by KPMG and by Quilter. And it was integral to the scheme that the trust should be exported to Mauritius for a brief temporary period only and then be returned, within the fiscal year, to the United Kingdom, which occurred. Mr Smallwood remained throughout in the COUNTRY A. There was a scheme of management of this trust which went above and beyond the day to day management exercised by the trustees for the time being, and the control of it was located in the United Kingdom.

Finally, in Hua Wang Bank Berhad and Ors v. FC of T; DFC of T v. Hua Wang Bank Berhad and Ors [2014] FCA 1392; 2014 ATC 20-480, Perram J stated that:

429. The issue is whether, on the facts as I have found them, these taxpayers had their place of 'effective management' in the Country Aor Australia. This of course is an expression used in a treaty but the interpretative principles applicable in those situations do not require one to do more than work out what 'place of effective management' means in the context of the Convention. The Convention is based on the OECD Model Tax Convention and the OECD's Commentary thereon is a legitimate interpretative material: Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 344, 356-357; Commissioner of Taxation v SNF (Australia) Pty Limited (2011) 193 FCR 149 at 184-185 [114]. The taxpayers submitted that Russell v Commissioner of Taxation (2011) 190 FCR 449 at 455-456 [25]-[31] denied the permissibility of recourse to the commentary. That is simply not what Russell says …

430. There is no doubt that the key management and commercial decisions were made by Mr Gould in Sydney. Consequently, the taxpayers' place of effective management was Sydney as well.

Factors identified at paragraph 24.1 of the 2014 OECD Commentary on Article 4 as being relevant to ascertaining the place of effective management include:

● where the meetings of the board of directors or equivalent body are usually held

● where the chief executive officer and other senior executives usually carry on their activities

● where the senior day-to-day management is carried on

● where the headquarters are located

● which country's laws govern the legal status of the entity, and

● where accounting records are kept.

The relevant facts and circumstances of Company A relating to these listed factors are:

(a) Company A was incorporated in Australia

(b) Company A's headquarters and registered office is in Australia

(c) Company A's board of directors meets in Australia C times a year, B times in the Country A and once in City C and Country B respectively

(d) Company A is listed on the Australian Stock Exchange and has a majority of Australian shareholders

(e) G out of the X Company A board of directors are Australian residents for tax purposes, and

(f) Company A's chief executive officer and majority of other senior executives carry out the majority of their strategic decision making activities (board meetings) in Australia.

After applying the facts and circumstances of Company A against the factors relevant to determining the place of effective management, the Commissioner is satisfied that the key senior management and commercial decisions of Company A, beyond and distinct from the ordinary day-to-day management in the sense outlined in Her Majesty's Revenue and Customs v. Smallwood and another [2010] EWCA Civ 778, occur in Australia. Therefore, for the purposes of the Country A Convention, Company A's place of effective management is in Australia.

The terms of the tiebreaker rule in Article 4(4) of the Country A Convention, when applied to the facts and circumstances of Company A, results in Company A being deemed to be a resident only of the country in which its place of effective management is situated. This is Australia in the case of Company A.

Hence, Company A does not meet the E element of the first condition of the prescribed dual resident definition and is therefore not a prescribed dual resident within the meaning of that term in subsection 6(1) of the ITAA 1936.

Is Company A a prescribed dual resident with regard to the City C Agreement?

In respect of City C, Company A meets C of the E elements of the first condition in the definition of a 'prescribed dual resident' as:

(a) Company A was incorporated in Australia and is a resident of Australia within the meaning of subsection 6(1).

(b) There is an agreement in force between City C and Australia (City C Agreement) as described in section 3AAA of the International Tax Agreements Act 1953.

(c) The City C Agreement contains a provision, Article 3(3), that applies where, apart from the provision, a company would, for the purposes of that agreement, be both a resident of Australia and a resident of the foreign country. This is commonly known as the “tiebreaker rule”

The tiebreaker rule

Article 3(3) of the City C Agreement sets out this tiebreaker rule for dual-resident companies:

Where by reason of the provisions of paragraph (1) of this Article a person other than an individual is both a resident of City C and an Australian resident-

(a) It shall be treated solely as a City C resident if it is managed and controlled in City C

(b) It shall be treated solely as a Australian resident if it is managed and controlled in Australia.

However, Article 3(3) of the City C Agreement is only relevant if a person other than an individual is a resident of both City C and Australia, by reason of Article 3(1). If Company A is not a resident of both City C and Australia, then Article 3(3) has no application and Company A will fail to meet the E element of the first condition of the definition of a 'prescribed dual resident.

Articles 3(1)(b), 3(1)(c) and 3(1)(d) of the City C Agreement relevantly state:

(b) the term "City C company" means any company which is managed and controlled in City C and which is not an Australian company;

(c) the term "City C resident" means any City C company and any person (other than a company) who is resident in City C; and

(d) the term "Australian resident" means any Australian company and any other person (other than a City C company) who is a resident of Australia.

[emphasis added]

The two defined terms “City C resident” and “Australian resident” in the City C Agreement are mutually exclusive. If, for example, Company A meets the definition of an “Australian resident” due to Company A being an “Australian company” then, for the purposes of the City C Agreement, Company A cannot also simultaneously be a “City C company” and thereby a “City C resident”.

Article 3(1)(a) of the City C Agreement defines the term “Australian company”:

(a) the term "Australian company" means any company which being a resident of Australia:

(i) is incorporated in Australia and has its centre of administrative or practical management in Australia whether or not any person outside Australia exercises or is capable of exercising any overriding control or direction of the company or of its policy or affairs in any way whatsoever; or

(ii) is managed and controlled in Australia;

Article 2(1)(l) of the City C Agreement defines the term “resident of Australia” as:

…the term “resident of Australia” has the meaning which it has under the laws of the Commonwealth relating to Australian tax

As stated previously, in response to question one, Company A is an Australian resident pursuant to subsection 6(1) of the ITAA 1936, as Company A was incorporated in Australia. It is therefore a “resident of Australia” for the purposes of Articles 2(1)(l) and 3(1) of the City C Agreement.

Following on from this, Company A will be an “Australian company” for the purposes of the City C Agreement if it meets either Article 3(1)(a)(i) or Article 3(1)(a)(ii) of the City C Agreement. That is, Company A will be an “Australian company” and hence an “Australian resident” if its 'centre of administrative or practical management' is in Australia, or it is 'managed and controlled' in Australia.

Note that neither of the terms 'centre of administrative or practical management' in Article 3(1)(a)(i), or 'managed and controlled in Article 3(1)(a)(ii), are defined in the City C Agreement.

However, the Explanatory Memorandum to the Income Tax (International Agreements) Act 1969 (City C EM), which implemented the City C Agreement, noted that Article 3 of the Agreement is modelled on the Residence Article (Article 3) contained in the former Country A Agreement. The City C EM noted that:

Article 3: Residence.

… Article 3 deals with these situations by specifying, for the purposes of the agreement, the circumstances in which a taxpayer (whether a company, an individual, or other entity) will be treated as being a resident of one country or the other. …

The relevant provisions are found in paragraphs 1 to 4 of article 3 which is modelled on article 3 of the Australia/Country A double taxation agreement.

The Explanatory Memorandum to Income Tax (International Agreements) Bill 1968 (former Country A EM), which gave the force of law in Australia to the former Country A Agreement, provided the following explanation of Article 3:

Article 3: Residence.

The term 'Australian resident' and 'Country A resident' are the terms chosen to describe throughout the agreement a person who is, or is treated as being, solely a resident of one or other of the B countries. As mentioned in the notes on article 2 these terms contrast with 'resident of Australia' and 'resident in the United Kingdom', which are the terms used in each country's internal laws. For the purpose of defining the terms 'Australian resident' and 'Country A resident' it was convenient to define also the terms 'Australian company' and 'Country A company'. These terms refer to companies that are (or are treated as) resident solely in one or the other country. The terms are mutually exclusive and an 'Australian company' cannot at the same time be a 'Country A company'.

Paragraph (1) defines certain terms.

Sub-paragraph (a) defines 'Australian company'. This is a company which under the Australian income tax law is a 'resident of Australia' and which:

· is incorporated in Australia and has its centre of administrative or practical management (broadly, its day to day management) in Australia; or

· is managed and controlled in Australia.

[emphasis added]

Paragraph 94 of TR 2001/13 provides that:

…when the courts speak of DTAs being given a more 'liberal' interpretation than domestic legislation, in the ATO's view they mean that the rules of construction will not be as detailed and rigid as they might be if the courts were to interpret domestic legislation or domestic instruments, and gaps, imprecision and ambiguities should be accepted as sometimes inevitable in such a text, and to some extent accommodated or 'smoothed over' in a way that addresses the context and meets the object and purpose of the DTA.

Paragraph 94 is important context in assessing the relevance of explanatory memoranda in interpreting international tax treaties. Paragraph 116 of TR 2001/13 states:

The Explanatory Memoranda for the enabling Bills when Australia's DTAs are implemented domestically (and sometimes the Second Reading Speeches) can be particularly useful as evidencing the Australian negotiators' understanding of the DTA's terms, and Parliament's understanding and expectations when the legislation was passed.

Therefore, while the former Country A Convention and City C Agreement are B different treaties, following the 'liberal' interpretative approach outlined in TR 2001/13 means that the supplementary material, namely the Explanatory Memorandum of the former Country A Convention, upon which the City C Agreement was based, is relevant to the interpretation of the identical words, 'centre of administrative or practical management', in the City C Agreement.

Applying the interpretive principles outlined above, the term 'centre of administrative or practical management' in the City C Agreement equates with day-to-day management.

In conclusion, if the day-to-day management of Company A is in Australia, then Company A will be an “Australian company” and thus an “Australian resident” for the purposes of the City C Agreement. Likewise, if Company A is 'managed and controlled' in Australia, it will come within the definitions of “Australian company” and also “Australian resident”.

The relevant facts and circumstances that support Company A's day-to-day management being located in Australia are:

(a) Company A's headquarters and registered office is in City Z, Australia

(b) Company A Company B and Company C and its controlled subsidiaries operate in Australia and are a tax-consolidated group for Australian income tax purposes

(c) Company A's chief executive officer and other senior executives carry out their activities in Australia, and

(d) Company A has advised that its day-to-day management occurs in Australia.

Therefore, Company A is an “Australian Company” pursuant to Article 3(1)(a)(i) of the City C Agreement and hence specifically excluded from the definition of “City C Company”.

Therefore, as Company A is solely an Australian resident pursuant to Article 3(1) of the City C Agreement, the tiebreaker rule in Article 3(3) of the City C Agreement does not apply.

The inapplicability of Article 3(3) of the City C Agreement to Company A causes Company A to fail to meet the E element of the first condition of the definition of a 'prescribed dual resident' in subsection 6(1) of the ITAA 1936.

Is Company A a prescribed dual resident with regard to the Country B Convention?

With regard to Company A's activities in Country B, Company A meets only the first B of the E elements of the first condition in the definition of a 'prescribed dual resident' as:

● Company A was incorporated in Australia and is a resident of Australia within the meaning of subsection 6(1).

● There is an agreement in force between Country B and Australia (Country B Convention) as described in section 3AAA of the International Tax Agreements Act 1953. However, the Country B Convention does not contain a provision that is expressed to apply where, apart from that provision, the company would, for the purposes of the agreement, be both a resident of Australia and a resident of Country B. That is, Country B Convention does not contain a tiebreaker rule for companies.

The rationale for this is explained in footnote 6 of TR 2001/13 which relevantly states:

The Relevant Convention… is an exception in that it only has such 'tie-breaker rules' for individuals, not companies.  This is because the terms 'Country B corporation' and 'Australian corporation' are defined to effectively exclude the application of the Convention to dual resident companies.  The tie-breaker rules do not of themselves directly affect whether the person is a resident of a country at domestic law - for such purposes the 'person' remains a domestic law resident of each of the countries.  The DTA will override the general domestic law to the extent of the inconsistency, such as where it limits taxing rights over 'non-residents' under the treaty, but it will leave unaffected the person's ability to claim, for example, family allowances only available to residents under domestic law.  In some cases a country's domestic law may make domestic law residence status or the operation of particular domestic tax rules depend on treaty residence status after application of the tie-breaker test.  For example, in Australia this incorporation of treaty concepts of residence occurs in the definition of 'prescribed dual resident' at subsection 6(1) of the Income Tax Assessment Act 1936 and of 'Part X Australian resident' at section 317 of the same Act. [emphasis added]

Therefore, with regard to the Country B Convention, Company A does not satisfy all of the elements of the first condition of the 'prescribed dual resident' definition in subsection 6(1) of the ITAA 1936.

Conclusion

Company A is not a 'prescribed dual resident' within the meaning of that term in subsection 6(1) of the ITAA 1936.