Courtney Ensor appeared for the successful Commissioner of Taxation, led by Kristina Stern SC and Julianne Jaques QC, in Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2022] FCA 971 and Melbourne Corporation of Australia Pty Ltd v Commissioner of Taxation [2022] FCA 972.
Three corporate entities brought tax appeals under Part IVC of the Taxation Administration Act 1953 (Cth) to the Federal Court of Australia concerning various of the 2001 to 2014 income years. Principally, the entities claimed deductions for numerous purported bad debts, management fees, and interest on onshore and offshore loans, with the alleged transactions having largely occurred between related entities. Heard from 2019 to 2021 with approximately $10m in issue, the proceedings involved copious documentary records, and required significant analysis and mastery of detailed financial data extending back to the 1980s. Each corporate relied on the evidence of accountant Vanda Gould, with Mr Gould’s credit being central to the determination of each proceeding. Reliability of, and inferences able to be drawn from, the documents relied on by the entities were key issues, with numerous inconsistencies between distinct pieces of evidence requiring exploration in meticulous cross-examination.
In finding for the Commissioner in Anglo American Investments on bad debts, management fees and onshore loans, Justice Logan held that the value of the management fees and interest on the purported onshore loans were no more than ex post facto constructions designed to be fiscally convenient for tax purposes and amounted to shams, recognising that the conduct of the controlling mind and will of the taxpayer, Mr Gould, amounted to wilful blindness. In respect of the only offshore loan, the Court accepted that less than 1% of the interest in issue had been proven to be incurred for a s 8-1 deductible purpose.
Justice Logan made similar findings in Melbourne Corporation, also recognising in obiter in respect of Part IVA that the dominant purpose of the amounts of management fees and interest claimed were wholly referable to creating a tax deduction in the particular amount, with the overwhelming dominant purpose of all dealings between the entities concerned having been to obtain a tax benefit.
A copy of the Court’s reasons in Anglo American Investments and Melbourne Corporation respectively can be found here and here. Copies of the Court’s prior decisions in these matters, in which Courtney also appeared are available at the following links:
- Anglo American Investments Pty Ltd v Commissioner of Taxation [2021] FCA 1253
- Anglo American Investments Pty Ltd v Commissioner of Taxation [2021] FCA 974
- Melbourne Corporation of Australia Pty Ltd v Commissioner of Taxation [2020] FCA 641
- Anglo American Investments Pty Ltd (No 2) v Commissioner of Taxation [2019] FCA 1028
- Anglo American Investments Pty Ltd v Commissioner of Taxation [2019] FCA 1027.
Courtney has significant experience in complex and long-running financial litigation, including large insolvencies and corporate crime, where an eye for detail and the ability to digest and synthesise large quantities of numeric data is essential. Her numerical literacy, underpinned by a Bachelor of Mathematics majoring in pure mathematics, is uncommon among barristers. This background, including studies in formal logic, has afforded Courtney her demonstrated ability to comprehend, critique and effectively cross-examine expert accountants, statisticians and financial analysts.
Should you require further information about whether Courtney has availability to accept your brief, please contact the clerk of New Chambers, Angela Noakes.
