Non-resident investors and divestments of Australian assets: ATO seeks industry comment post-TPG

Late last year the Australian Tax Office (ATO) pursued TPG for tax in respect of the A$1.5 billion gain derived by TPG from the disposal of its shares in Myer Holdings Pty Ltd, a move which we suggested at the time meant that future divestments of Australian assets by non-residents will come under close (and immediate) scrutiny, with serious implications for non-resident private equity fund investors.

On 16 December 2009, the ATO requested a response from industry to its draft tax determinations in relation to "Income tax: treaty shopping" and "Income tax: can a private equity entity make an income gain." The Australian Private Equity & Venture Capital Association Limited (AVCAL) responded with Response to Draft Tax Determination 2009/D17 and Response to Draft Tax Determination 2009/D18

Clayton Utz was pleased to assist AVCAL in developing its responses. We will continue to monitor the situation and keep you informed of future developments.