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Glencore loses bid to stop Australian tax office using 'Paradise Papers'
High Court finds Glencore trader's $200m bonus not a capital gain
The High Court has dismissed a claim by former Glencore trader Vaughan Blank that $200 million in bonuses should be taxed as capital gains and not ordinary income.
"The amount was ordinary income of Mr Blank," said a High Court judgment published on Wednesday.
"It was deferred compensation for services Mr Blank rendered as an employee and therefore, on receipt, formed part of his assessable income."
Lawyers for Mr Blank, now a real estate developer, had argued the income should be treated as a capital gain because it was the proceeds of an employee scheme that entitled him to a future proportion of the profit of Glencore.
Stewart Grieve, a partner with Johnson Winter & Slattery, estimated a win for Mr Blank would have entitled him to a refund of up to $17 million. But a loss might force him to pay the Australian Taxation Office an extra $45 million.
ednesday's judgment does not include details of any liability.
Mr Blank worked for Glencore in Switzerland and Hong Kong before he moved to Australia in 2002.
Rights issue
By the time he resigned in 2006 he had acquired, over a 15-year period with the company, a series of rights to share in the future profits of Glencore companies.
In 2007 he gave up the rights in exchange for $US160 million, or $201 million Australian, which was payable in 20 instalments over five years.
Mr Blank lodged a tax return for the 2007 tax year in which he returned a capital gain of $100.8 million.
This was the result of the disposal of his Glencore rights, at $201 million, minus the 50 per cent capital gains tax discount.
While the Tax Office initially accepted this position, it later issued amended assessments for 2008, 2009 and 2010, telling Mr Blank the $201 million would be treated as ordinary income and therefore taxed at his full marginal rate.
The Federal Court of Australia held that the amount was income according to ordinary concepts because it was deferred compensation for services rendered by Mr Blank.
That decision was upheld by a majority of the Full Court of the Federal Court.
"We respect the decision of the court and will not be commenting further at this time," the ATO said.
