The world's largest miner, BHP, (ASX:BHP) is considering whether to appeal an Australian Federal Court's decision related to income derived from its Singapore-based marketing unit, which has left the company with an A$82 million ($59m) tax bill.
In November, BHP won the case with the Australian Taxation Office (ATO) in an administrative court, but the Federal Court heard an appeal from the tax authority, and sided with it, leaving the mining giant with the hefty bill in primary tax for the 2006-2015 financial years.
The court's decision was based on the rationale that both BHP's Australian and British arms are associates, and therefore subject to what the company claims is a "top-up tax" in Australia under Controlled Foreign Companies rules.
The Federal Court's decision was based on the rationale that both, BHP's Australian and British arms, are associates and therefore subject to paying taxes at home, under Controlled Foreign Companies rules.The profits BHP hasn't paid tax on were made by its marketing arm on the sale of commodities owned by the company's UK side.
The Melbourne-based company has 28 days to file an application for special leave to appeal to the High Court of Australia.
BHP is also facing accusations by the state of Western Australia of having underpaid iron ore royalties on shipments sold via its Singapore marketing hub, stretching back over more than a decade.
The alleged discrepancy was discovered during a recent audit. The parties are currently in talks.
The Singapore corporate tax rate, at 17%, is significantly lower than Australia's rates. But the rate that applies to companies such as BHP has been legally reduced to almost zero in recent years thanks to several government incentives.
BHP's 15-year tax arrangement with the Singapore government expires in July 2020, after which the company says it will pay tax at "a reduced rate."
Rival miner Rio Tinto, which also has an office in Singapore, charges a marketing fee to its Australian operations through a complex structure. The group pays a 5% tax in the Southeast Asian country.
Marketing hubs set up by mining giants to allow for commodities such as iron ore and coal to be extracted in Australia and then sold to the companies' own operations in Singapore. From there, they are shipped with a higher price tag.