There has been a heartening development in the long running uncertainly about the access to treaty benefits for partners in foreign limited partnerships investing into Australia, at least where the foreign LP is actually a partnership at general law (e.g. Cayman LP), and not incorporated (e.g. UK LLP).

The writer has previously written about the problem stemming from the 2014 Full Federal Court decision in FC of T v Resource Capital Fund III LP [2014] FCAFC 37 (see http://pointonpartners.com.au/taxation-uncertainty-on-foreign-private-equity/). That article was written before the High Court of Australia (the ultimate appeal court), refused that Cayman LP special leave to appeal the decision of the Full Federal Court.

The new development is that the general partner of a related Cayman LP has succeeded in convincing a single judge of the Federal Court (Pagone J) in Resource Capital Fund IV LP v FC of T [2018] FCA 41 (5 Feb 2018), that the 2014 decision did not preclude the US resident limited partners from claiming treaty benefits, on the basis that all the parties to the earlier decision (and related decisions), had assumed that the LP was deemed to be a legal entity resident in Cayman, liable to Australian tax (under Div 5A), rather it being a disputed fact. As such, the previous decisions did represent precedent to preclude arguing the point about the proper taxpayers (the US limited partners).

The partners winning argument was that Div 5A only deemed the LP to be treated like a company, so that the tax liability raised in the name of the Cayman LP, was a liability actually to be borne by the limited partners of what was an actual partnership, and to the extent they were resident in the US, they were therefore entitled to treaty benefits.

There is every likelihood the decision will be appealed, although this should be embarrassing to the ATO, as they had argued against their own ruling TD 2011/25 in the 2014 case, and it is really time for them to accept that the result in Pagone J's decision is appropriate.

The risk is that Pagone J's finding that the issue was not previously decided, may still be challenged, not the least because s94K of Div 5A says "a reference in the income tax law to a partnership does not include a reference to the [limited] partnership", but this was not mentioned by Pagone J nor in any of the judgments, notwithstanding reference to it by the Commissioner as reported in the transcript of the High Court special leave application.

Contributed by: Robert Gordon, of Pointon Partners E: rmg@pointonpartners.com.au, W: www.pointonpartners.com.au