Jan Cameron fights ATO over tax on Bellamy’s sale
Tasmanian businesswoman Jan Cameron is fighting the Tax Office over whether a Caribbean-based trust that offloaded shares in baby formula company Bellamy’s Australia is liable for capital gains tax.
The former Rich Lister’s application relates to The Black Prince Private Foundation, a legal entity based in the Caribbean island of Curaçao, a known tax haven.
The case relates to the year ended June 2018 and the disposal of more than 2.5 million shares in the once ASX-listed Bellamy’s.
Tax experts, who did not want to be quoted on a case before the courts, said it appeared the action was related to whether Black Prince is considered a non-resident for tax purposes and should disregard capital gains tax on the share offload.
Generally speaking, they said, a non-resident making capital gains on selling shares wouldn’t be subject to capital gains tax. Taxable property for foreign or temporary residents in Australia are things such as real property and assets used to do business.
However, there is complexity over who or what is the ultimate holder of an asset, where they reside, and whether they would be subject to capital gains tax.
Adding further complexity to the situation is that the ultimate controller of the Bellamy’s shares was Ms Cameron’s charity, The Elsie Cameron Foundation, named after her mother. The foundation is not listed in the court proceeding. The application is made by Ms Cameron and her Bicheno Investments as a trustee for the Jan Cameron Trust.
Orders issued by Justice Melissa Perry earlier this week said: “If the Commissioner proposes to issue an assessment to one or other of the applicants for the year ended 30 June 2018, he will give at least 48 hours’ notice to their solicitor.
“The court notes that the respondent has no present intention to issue assessments to the applicants before 30 June 2022.”
Justice Perry’s orders also note Ms Cameron has undertaken not to remove assets from Australia, or diminish their value, up to $5.1 million. If Ms Cameron’s assets move above $5.1 million in Australia, she can move them, as long as at least that amount remains.
Bicheno Investments as a trustee for the Jan Cameron Trust made the same undertaking, but for a lower value of just over $460,000.
Pearson Tax Lawyers, which is representing Ms Cameron and her entities, said client matters are confidential, and it cannot comment.
The ATO said it, “cannot comment on the tax affairs of any individual or entity due to our obligations of confidentiality under the law. The ATO also cannot comment on matters before the court.”
A tracing notice filed by Bellamy’s in 2017 amid a board row with Ms Cameron revealed that she and her then lawyer Rodd Peters were directors and shareholders of the charitable foundation to which the Black Prince was answerable. The Black Prince controlled 14.5 per cent of Bellamy’s shares at the time. Ms Cameron also had her own personal interest.
At the time, Ms Cameron told The Australian Financial Review the Black Prince’s location in the Caribbean had nothing to do with tax. “Just because it’s in a tax haven, it’s got nothing to do with tax issues,” she said in 2017. “As you know, the Elsie Cameron Foundation doesn’t pay tax anyway. People who think this is a tax dodge are completely wrong.”
The Black Prince is the same entity that is central to the case brought by the corporate regulator against Ms Cameron last year. The Black Prince was set up in 2012 by former KPMG banker Jon Adgemis for his own investment in a technology start-up called Freenet, one that ultimately failed.
After laying dormant for two years, the Australian Securities and Investments Commission told Hobart Magistrates Court last October it was allegedly revived to hold Ms Cameron’s shareholding in Bellamy’s at the time of its 2014 float.
In early 2020, ASIC went public with charges against Ms Cameron for allegedly failing to disclose her links with Black Prince. According to court documents, the charges were laid in August 2019, but it was not made public until February 2020.
Ms Cameron pleaded not guilty in July 2020 to the two criminal charges.
The court heard the case last October and November. A judgment is yet to be made.
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