CVC arrests a fillip for Tax Office
As Vanda Gould told it, Tax Office action against companies that bought shares in his listed investment company, CVC Limited, was putting at risk foreign investment in Australia.
ATO lawsuits against five offshore companies that bought shares in CVC "could lead to a substantial reduction in future foreign investment", Mr Gould said in a letter to then-treasurer Wayne Swan in May 2011.
He accused the ATO of deciding to "ignore the commercial realities" when levying tax bills totalling about $40 million against companies in Britain, the Bahamas and Western Samoa.
On Tuesday night, Mr Gould faced a reality of a different kind: arrest on criminal charges after Australian Federal Police swooped on his palatial home in the Sydney suburb of Chatswood.
At the same time, police arrested fellow CVC director John Leaver at his $5.8 million beachfront house in Point Piper.
A third man, Belgian national Peter Borgas, was arrested at the airport as he waited for a flight back to his home in Switzerland.
Police also searched the Sydney CBD offices of CVC, which is not related to the similarly named US private equity group, a Melbourne office and a rural home at Glenquarry, near Bowral in NSW.
The trio were accused of millions of dollars of tax evasion and charged with offences that could see them jailed for up to 25 years.
Federal police will allege that the men used a complex network of offshore companies to conduct business in Australia. The profits were allegedly then transferred back to Australian companies controlled by the men disguised as loans, fraudulently reducing their tax liabilities.
The AFP said the operation was ongoing and further arrests were likely.
The raids and arrests were the fruit of a four-year investigation, Operation Rubix, into Mr Gould, run as part of Project Wickenby by senior AFP and Tax Office officials.
It is an investigation in which the ATO last week ignored the ruling of a court in the Cayman Islands, potentially committing an offence against the tax haven's strict financial confidentiality laws, during bitterly fought civil litigation that continues despite the arrests on Tuesday night.
The arrests are also a welcome fillip for the AFP and the ATO, bolstering the image of Project Wickenby, which critics regularly attack for its cost of more than $500 million.
ATO deputy commissioner Greg Williams was quick to trumpet the arrests as a success, calling them "a warning to people who abuse tax secrecy havens".
"We will hold tax cheats accountable," he said.
The first the public heard of the stoush was in September 2010, when the Federal Court froze millions of dollars of shares in Australian-listed companies held by companies associated with Mr Borgas.
One of the companies, British-registered Chemical Trustees, held stakes in 26 companies including Woodside, Westfield and AMP.
It also held 15.7 per cent of Vita Life Sciences and 16 per cent of Cyclopharm and was a top-20 shareholder in CVC. Mr Gould is chairman of all three companies.
CVC's most recent annual report shows that as of August 26, 4 per cent of its stock was held by Chemical Trustees.
A second company targeted in the ATO's civil lawsuits, British-registered Derrin Brothers Properties, holds 6.5 per cent.
At the time of the freezing order, Mr Gould denied any wrongdoing or any involvement in tax avoidance.
He told Fairfax Media the "majority of income" from shares sold by the British companies had been distributed to charities in Australia, Africa, Asia and elsewhere.
While Chemical Trustees and Derrin Brothers Properties and a third company, Southgate Investment Funds, are registered in Britain, two others are more exotic.
Bywater Investments is registered in well-known tax haven the Bahamas, while Hua Wang Bank holds a banking licence in Western Samoa.
After losing one round of their battle with the ATO, the companies have paid about $40 million in tax assessments for as far back as 2002.
However, they will be entitled to a refund if they succeed in their civil battle with the ATO in the Federal Court. It was this civil stoush that brought Mr Borgas to Sydney, into the net cast by Operation Rubix.
In the Federal Court, Derrin Brothers Properties, Chemical Trustees and Bywater Investments claimed they were run from Neuchatel, Switzerland, where Mr Borgas is based.
Southgate Investment Funds said it was run from the offices of Lubbock Fine, a firm of accountants in London.
However, their case took a hit on September 19, when Justice Nye Perram decided to admit into evidence documents the ATO obtained from Cayman Islands authorities relating to two companies, JA Investments and MH Investments.
"These documents have a tendency to show that it is Mr Gould, and not Mr Borgas, who is the ultimate beneficial owner of [JA and MH] and that Mr Gould controls them de jure," Justice Perram said in reasons published last week.
Justice Perram's decision directly conflicted with a decision of the Grand Court of the Cayman Islands, which on September 13 decided the tax haven's authorities should not have handed the information over to the ATO. In a decision that has the potential to undermine the operation of an information-sharing agreement between the Cayman Islands and Australia, Justice Charles Quin said the information remained confidential to JA and MH.
He ordered the Cayman Islands Tax Information Authority to write to the ATO, revoking its consent for the documents to be used in Australian courts and their "immediate return and/or destruction". But back in Australia, Justice Perram said that the fact that tendering the documents might be an offence in the Caymans was "irrelevant".
The barrister who represented the companies, John Hyde Page, declined to comment on the Federal Court case.
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