Tag: Legal professional privilege (LPP)

Australia vs Mylan Australia Holding Pty Ltd., March 2024, Federal Court, Case No [2024] FCA 253

Australia vs Mylan Australia Holding Pty Ltd., March 2024, Federal Court, Case No [2024] FCA 253

Mylan Australia Holding is a subsidiary of the multinational pharmaceutical company Mylan Group. Mylan Australia Holding is the head of the Australian tax consolidated group, which includes its subsidiary Mylan Australia Pty. In 2007, Mylan Australia Pty acquired the shares of Alphapharm Pty Ltd and a substantial loan (A$923,205,336) was provided by a group company in Luxembourg to finance the acquisition. In subsequent years the interest expense was deducted from the taxable income of Mylan’s Australian tax group. The Australian Taxation Office (ATO) issued amended assessments to Mylan Australia Holding disallowing approximately AUD 589 million of interest deductions claimed for the 2007 to 2017 tax years. The ATO had initially pursued the structure as a transfer pricing issue, but ultimately argued that the deductions should be disallowed under the general anti-avoidance rule. Mylan Australia Holding appealed to the Federal Court. Judgment of the Court The Federal Court decided in favour of Mylan Australia Holding and set aside the amended assessment ... Read more
Australia vs Mylan Australia Holding Pty Ltd., June 2023, Federal Court, Case No [2023] FCA 672

Australia vs Mylan Australia Holding Pty Ltd., June 2023, Federal Court, Case No [2023] FCA 672

Mylan Australia Holding is a subsidiary of the multinational Mylan Group, which is active in the pharmaceutical industry. Mylan Australia Holding is the head of the Australian tax consolidated group, which includes its subsidiary Mylan Australia Pty. In 2007, Mylan Australia Pty acquired the shares of Alphapharm Pty Ltd. and to finance the acquisition, a substantial loan (A$923,205,336) was provided by a group company in Luxembourg. In the following years interest expenses was deducted from the taxable income of Mylan’s Australian tax group. The tax authorities issued a notice of assessment for the years 2009 to 2020 disallowing the deduction of excessive interest expense incurred as a result of the financing arrangement. Initially the tax authorities relied on both transfer pricing provisions and the general anti-avoidance provision (Pt IVA), but subsequently they relied only on the latter as the basis for the assessment. Mylan Australia Holding filed appeals on 4 June 2021 in respect of the 2009-2019 assessment and on ... Read more
Australia vs PwC, March 2022, Federal Court of Australia, Case No FCA 278

Australia vs PwC, March 2022, Federal Court of Australia, Case No FCA 278

In the course of an audit a formal request to produce certain documents was issued to the multinational meat production group JBS by the Australian tax authorities. On behalf of its client, PwC claimed that the documents requested were subject to legal professional privilege (LPP), and therefore did not need to be produced. Thus, PwC declined to provide approximately 44,000 documents. The tax authorities disputed the LPP claims over approximately 15,500 documents. However, for the purposes of the trial, only 116 sample documents were selected by the partis and considered by the court. Judgement of the Federal Court The court found that legal professional privilege claims needed to be considered on a document-by-document basis. From the sample of documents selected by the parties, the court concluded that 49 were privileged; 6 were partly privileged; and 61 were not privileged. Excerpt “It is therefore necessary to consider, on a document-by-document basis, whether each Sample Document is subject to legal professional privilege ... Read more
Australia vs CUB Australia Holding Pty Ltd, September 2021, Federal Court of Australia, Case No FCAFC 171

Australia vs CUB Australia Holding Pty Ltd, September 2021, Federal Court of Australia, Case No FCAFC 171

In this case CUB Australia Holding Pty Ltd appeals a judicial review decision by a judge of the Federal Court. The tax authorities had issued a Notice on 4 March 2020 requesting CUB to provide certain details about documents over which CUB had claimed legal professional privilege (LPP). CUB declined to provide the requested details about the documents in full. The tax authorities then issued a “formal notice” to the taxpayer demanding (under threat of prosecution for non-compliance) the information. CUB argued that the notice was issued (at least partly) for an “improper purpose” and was therefore invalid. According to CUB, evidence showed that the authorities did not seek the information to decide whether to challenge the taxpayer’s claim of legal professional privilege, but instead to determine the claim. Judgement of the Federal Court The court upheld the previous judicial review-decision. The officer that had issued the disputed notice, gave evidence that “determining the claim” had not been the purpose ... Read more
Australia vs. Glencore, August 2019, High Court, Case No. [2019] HCA 26 S256/2018

Australia vs. Glencore, August 2019, High Court, Case No. [2019] HCA 26 S256/2018

The Australian Tax Office had obtained information from the Paradise Paper-leak and used the information in a tax assessment of Glencore. Glencore held that such leaked information was confidential (protected by legal professional privilege) and could not be used in a tax assessment. On that basis Glencore filed an appeal to the High Court. High Court Decision The Australien High Court dismissed the appeal and allowed use of the leaked information for tax assessment purposes. “In no way do these cases support the notion that common law courts elsewhere are granting injunctions with respect to privileged material on the basis only of the wrongfulness associated with its taking.  Certainly, it is necessary for an equity to arise that the person to be restrained must have an obligation of conscience, but the basis for an injunction is the need to protect the confidentiality of the privileged document. The plaintiffs’ case for the grant of relief on a basis other than confidentiality ... Read more