Westpac Banking Corporation v Commissioner of Inland Revenue: An Analysis

Abstract

This paper examines Harrison J’s tax avoidance approach employed in Westpac Banking Corporation v Commissioner of Inland Revenue. The author critically evaluates several approaches to the tax avoidance inquiry, which are essentially questions of statutory interpretation. The Supreme Court in Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue (Ben Nevis) arguably mischaracterised Richardson J’s initial formulation of the scheme and purpose approach to tax avoidance, which on its true construction is not that dissimilar to the parliamentary contemplation test that the Supreme Court introduced. The rejection of the longstop approach in Ben Nevis is seemingly anomalous because in essence the longstop approach amounts to little more than a purposive construction of the statutory provisions. Harrison J’s refusal to recognise a two-step structure to the tax avoidance inquiry and his Honour’s characterisation of the “not merely incidental” test are also addressed. This paper closely scrutinises the pertinent features of his Honour’s avoidance analysis. Harrison J takes a broad overarching approach to the nebulous question of tax avoidance. The avoidance conclusion rests on the absence of underlying commerciality to the transactions. By explicitly using measures of commerciality and refraining from adding judicial gloss to the statutory wording, Harrison J’s judgment brings some clarity to the tax avoidance inquiry. However Harrison J’s finding of a commercial purpose is somewhat perplexing. The author argues that Harrison J has gone someway to melding the two limbs of the statutory definition of “tax avoidance arrangement”. Harrison J’s judgment reveals that considerations associated with the “not merely incidental” exception may now become a constitutive feature of all tax avoidance inquiries.