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Mullens v Federal Commissioner of Taxation was a 1976 High Court of Australia tax case concerning arrangements where stockbrokers Mullens & Co accessed tax deductions for monies subscribed to a petroleum exploration company. The Australian Taxation Office held the scheme was tax avoidance, but the court found for the taxpayer. In the taxonomy of tax schemes, this was of the kind where a wholly intentional tax benefit is swapped or traded between taxpayers, from someone who can't make full use of it to someone who can. The principal significance of the case today is its part in judicial interpretation of the section 260 anti-avoidance provisions of the Income Tax Assessment Act 1936. == Transaction 1 == In 1968 a company called Vam Limited proposed to explore for natural gas in fields in South Australia and in south-western Queensland. In August 1968 it formed a new company Vamgas NL whose sole business would be that exploration. As a petroleum exploration company, monies subscribed for shares in Vamgas would be tax deductible under section 77A of the Income Tax Assessment Act 1936 as it stood at that time. Vamgas shares had a par value of $0.50 each and Vam itself took up 5 million part paid to $0.10 each. Another 5 million, to be fully paid, were offered by way of a prospectus; 3 million to Vam shareholders and 2 million reserved for clients of the underwriting stockbroker and certain other brokers (Mullens & Co was not one of them). The offer to the Vam shareholders was by way of non-renounceable rights, which meant they could take them up or let them lapse, but could not sell or transfer them to someone else. Mr Close was chairman of the board at Vam. He and his family and friends were substantial shareholders in Vam. They wanted to have an interest in the Vamgas, but couldn't afford to pay for their full allotment of shares (about 433,800, worth $216,900), and/or didn't have enough other income to make use of the tax deductions to be had by subscribing. Mullens & Co stockbrokers knew about the offer (and had had other dealings with Vam) and was in the opposite situation, it had access to funds and had income which it could usefully offset with deductions, but had no particular interest in Vamgas. Close worked with Mullens on the following mutually beneficial arrangement. The Vam shareholders created trusts under which they took up their Vamgas rights and paid for their new shares with money provided by Mullens. The shares were in the names of those various Vam shareholders, but as trustees, with Mullens (or associates) the beneficial owners. Mullens granted those shareholders options allowing them to buy the Vamgas shares, if they wished, for the issue price (i.e. what Mullens had paid), any time until 15 May 1969 (that being a few months after the issue). The benefits of this scheme were, * Mullens got a tax deduction for the $216,900 subscribed to Vamgas. But assuming the Vam shareholders did exercise their options, then Mullens got all that money back, its only actual expense would be interest on the money for the short period until exercise (they financed with a bank overdraft). * The Vam shareholders got any market price rise above the issue price of the new Vamgas shares, with no cash outlay or risk. In effect the Vam shareholders had swapped their potential tax deductions for a combination of short-term finance and protection against the share price falling. It seems Mullens wasn't too concerned about the latter possibility, and indeed Vamgas did rise when it listed on the stock exchange. The Vam shareholders exercised their options on 14 May 1969, the day before expiry, and paid Mullens the $0.50 per share strike price. They got the money by selling some of their shares (having risen in price) or by selling some new further rights which Vamgas had issued. (Vamgas made a one-for-one rights issue shortly after listing, and under the option conditions such rights belonged to the option holder, i.e. those Vam shareholders, not Mullens.) One of the Vam shareholders, a Mrs Walser, had on 3 April 1969 sold (at a profit) the Vamgas shares she held in trust. This was, strictly speaking, before she exercised her option. Mullens was the selling broker and was obviously unconcerned by formalities of exercise dates, but it did cause Mr Bridges (a partner in Mullens) considerable embarrassment in court (below) because it gave the impression Mrs Walser regarded the shares as hers to trade, and on that basis maybe the trust documents were a sham and she was really the owner. The latter was what the Australian Taxation Office contended. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Mullens v Federal Commissioner of Taxation」の詳細全文を読む スポンサード リンク
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