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Burton v Commissioner of Taxation [2018] FCA 1857

TAXATION – appeal from an objection decision of the Commissioner of Taxation – where the taxpayer made gains from investments in the United States – where tax was paid in the United States on the gains realised – where the gains were also taxable under Australian tax law as capital gains – where the Commissioner denied the taxpayer a foreign income tax offset against his tax liability in Australia on the gains to the extent of half of the United States tax paid – issue as to what constitutes double taxation – consideration of Australia’s foreign income tax offset provisions in Div 770 of the Income Tax Assessment Act 1997 (Cth), particularly s 770-10(1) – construction of the terms ‘included in’ and ‘in respect of’ in s 770-10(1) – whether the Commissioner’s construction is inconsistent with Art 22(2) of the Convention between the Government of Australia and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income

Full decision here

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