FEDERAL COURT OF AUSTRALIA

Lochtenberg v Commissioner of Taxation [2019] FCA 1167

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is from the decision of the Administrative Appeals Tribunal made on 30 November 2018 affirming the objection decision of the respondent Commissioner of Taxation in relation to amended assessments of income tax for the years ended 30 June 2007, 2008 and 2009: Lochtenberg and Commissioner of Taxation (Taxation) [2018] AATA 4667.

2    Mr Lochtenberg argued before the Tribunal that s 23AG(1) of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) applied so as to exempt part of the payments received by him, on the basis that part constituted “foreign earnings” derived by him from “foreign service” as an employee in Switzerland. The Commissioner argued that Mr Lochtenberg was taxable on the entirety of the payments received.

The statutory provision

3    In each of the relevant years, s 23AG relevantly provided as follows:

23AG    Exemption of income earned in overseas employment

(1)    Where a resident, being a natural person, has been engaged in foreign service for a continuous period of not less than 91 days, any foreign earnings derived by the person from that foreign service are exempt from tax.

…

(7)    In this section:

…

foreign earnings means income consisting of earnings, salary, wages, commission, bonuses or allowances, or of amounts included in a person’s assessable income under Division 13A…

foreign service means service in a foreign country as the holder of an office or in the capacity of an employee.

…

The issue

4    The issue before the Tribunal was whether the earnings were derived by Mr Lochtenberg from his service in a foreign country.

5    This case bears some close factual and historical similarities to Blank’s case (Blank v Commissioner of Taxation (No 2) [2014] FCA 517; 98 ATR 379; Blank v Commissioner of Taxation [2015] FCAFC 154; 242 FCR 96; and Blank v Commissioner of Taxation [2016] HCA 42; 258 CLR 439 where the High Court did not consider the present point), which explains the close attention paid to that case by the Tribunal and in this Court. Senior Counsel for Mr Lochtenberg argued that, unlike Blank’s case, in the present case the relevant commercial parties had agreed an express apportionment of the amount payable to Mr Lochtenberg as between the portion referable to the period in which he was employed in Switzerland (from 1 July 2001 to 31 December 2003) and the period referable to his earlier employment in Australia (the period up to 30 June 2001). That is, the amount payable to Mr Lochtenberg was said not to be an undissected lump sum. A substantial difference between that litigation and the present appeal is that this appeal is on and limited to a question of law, whereas Blank’s case was heard at first instance by a judge of this Court (Edmonds J).

The findings of fact of the Tribunal

6    The following findings of fact are taken directly from the reasons of the Tribunal and are substantially reproduced in the words of the Tribunal.

7    Sometime prior to 1993, Mr Lochtenberg commenced employment with Glencore Australia Pty Ltd (Glencore Australia) which was the Australian subsidiary of Glencore International AG (GIAG), a Swiss company. GIAG was a wholly owned subsidiary of Glencore Holding AG (GH), another Swiss company.

8    During 1993, Mr Lochtenberg was selected to participate in a profit participation plan operated by GIAG and GH (Glencore Profit Participation Plan).

9    The agreements that governed the Glencore Profit Participation Plan at the time were:

    Profit Participation Agreement, Version Newies 1993 (PPA 1993);

    Shareholder’s Agreement 1994 (SA 1994); and

    Equity Participation Agreement (EPA 1993).

10    Mr Lochtenberg executed these documents at the commencement of his participation in the Glencore Profit Participation Plan.

11    In or around August 1996, Mr Lochtenberg and GIAG entered into an agreement titled “Amendment to the Profit Participation Agreement”.

12    In or around October 1999, Mr Lochtenberg and GIAG entered into an agreement titled “Profit Participation Agreement, Non-US 1999” (PPA 1999) which replaced the PPA 1993 and the EPA 1993.

13    Over the period from 1993 to 2000, while he was employed and working for Glencore Australia, Mr Lochtenberg was allocated 950 units of Genusscheine (GS) in GIAG for no consideration, and the same number of shares in GH for which he paid the subscription amount of 50 Swiss Francs each.

14    On or around 30 April 2001, Mr Lochtenberg, GIAG and Glencore AG entered into an agreement titled “Incentive Profit Participation Agreement” (IPPA 2001). This agreement provided for the issue of Phantom Units (PU) instead of GS to participating employees.

15    With effect from 1 January 2001, GIAG and GH subsequently allocated to Mr Lochtenberg 50 PU under the IPPA 2001, and 50 shares in GH at 50 Swiss Francs each.

16    In around April 2001, Mr Lochtenberg was offered employment with GIAG to co-head its coal division which required him to relocate to Baar, in the Canton of Zug, Switzerland.

17    During July 2001, Mr Lochtenberg left his position with Glencore Australia and commenced employment with GIAG. He ceased to be a resident of Australia for tax purposes and became a resident of Switzerland for Swiss tax purposes.

18    Mr Lochtenberg worked as an employee of GIAG in Switzerland throughout the period from July 2001 to December 2003.

19    In or about August 2003, Mr Lochtenberg was considering ending his employment with GIAG. He contacted his tax advisor to seek advice as to how the payment which he would receive on termination of his employment under the Glencore Profit Participation Plan would be taxed in Australia. His tax advisor met with Mr Lochtenberg in Switzerland in September 2003 and reviewed the relevant agreements relating to the Glencore Profit Participation Plan.

20    On or around 18 December 2003, Mr Lochtenberg informed GIAG that he wished to resign.

21    On 18 December 2003, the Chief Financial Officer of GIAG (CFO), gave Mr Lochtenberg a letter attaching a draft Declaration of Assignment and Release and a provisional calculation of his total “profit participation”. This was expressed to be provisional because the appreciation for the year ended 31 December 2003 would not be known until about April or May 2004.

22    Around the same time, Mr Lochtenberg and the CFO had a conversation in which the CFO explained to Mr Lochtenberg that part of the payment reflecting the accumulated appreciation in his profit participation while he was a Swiss resident would be treated by the Swiss tax authorities as subject to income tax in the Canton of Zug, Switzerland.

23    On 13 January 2004, Mr Lochtenberg had a telephone conversation with the CFO in which they discussed the need to divide the final amount payable into two components, one being the accumulated appreciation during the time Mr Lochtenberg was employed in Australia (AU component) and the other being the accumulated appreciation during the time he was employed in Switzerland (CH component), which the Swiss tax authorities would regard as income subject to Swiss income tax. They also discussed the need to arrange a meeting with the Swiss tax authorities.

24    In early February 2004, Mr Lochtenberg met with his tax advisor, who advised him that the amount he received from GIAG under the Glencore Profit Participation Plan would be taxable on capital account for Australian income tax purposes. This continued to be the tax advisor’s view at all relevant times prior to the amendment of Mr Lochtenberg’s objection to include the ground relating to s 23AG(1) which occurred on or about 13 March 2014. The addition of the objection ground relating to s 23AG(1) followed the judgment of Edmonds J in Blank v Commissioner of Taxation [2014] FCA 87; 95 ATR 1 on 21 February 2014.

25    There were numerous discussions during January to March 2004 between Mr Lochtenberg, his tax advisor, the CFO and the Deputy CFO of GIAG, regarding the final calculation of the amount payable by GIAG to Mr Lochtenberg and the division of that amount into the AU component and the CH component.

26    On 4 May 2004, Mr Lochtenberg and his tax advisor attended a meeting with the CFO and the Deputy CFO in Baar, Switzerland at which the CFO provided a final calculation of the total amount payable to Mr Lochtenberg under the Glencore Profit Participation Plan of USD 30,387,785 (the Amount). The Amount was apportioned, as per two schedules, into the CH component of USD 18,192,540 and the AU component of USD 12,195,245. The two amounts were calculated to reflect the appreciation of Mr Lochtenberg’s profit participation during the periods of time he was a resident of Australia and Switzerland. That is, the AU component was calculated to reflect the value of Mr Lochtenberg’s profit participation as at 30 June 2001 when he ceased to be a resident of Australia and therefore, also ended his employment with Glencore Australia, and the CH component was the balance of the Amount for appreciation in value after that date, referable to his Swiss residency and his employment in Switzerland.

27    At the meeting, Mr Lochtenberg and his tax advisor discussed with the CFO the scheduling of the payments so that, instead of apportioning the Swiss Withholding Tax (Swiss WHT) throughout the duration of the 20 instalments, Swiss WHT was to be paid upfront to the relevant Swiss tax authority.

28    After the meeting, also on 4 May 2004, the CFO provided Mr Lochtenberg with a letter which enclosed the final form of the Declaration of Assignment and Release, to which was annexed as “Annex A”: (a) a profit participation calculation schedule dated 22 April 2004 showing the final calculation of the Amount payable; and (b) two profit participation calculation schedules dated 4 May 2004 which apportioned the Amount into the AU component and the CH component, as referred to above at [26].

29    On or around 5 May 2004, Mr Lochtenberg had a meeting with the CFO and two officers from the tax authority of the Swiss Canton of Zug to confirm that the CH component would be the part of the Amount subject to income tax in the Canton of Zug. After that meeting, Mr Lochtenberg executed the Declaration, the draft of which he had been given by GIAG on 18 December 2003. Having negotiated his Swiss tax obligations, Mr Lochtenberg then returned to Australia.

30    On or around 28 September 2004, GIAG and Mr Lochtenberg entered into an agreement (the September 2004 Agreement). Relevantly, the September 2004 Agreement:

(1)    documented the agreement made on or around 4 May 2004 and recorded in the Declaration and its annexures that the Amount would be apportioned into the CH component of USD 18,192,540 and the AU component of USD 12,195,245;

(2)    varied the time for payment of the instalments of the Amount to facilitate the upfront payment of Mr Lochtenberg’s Swiss tax liability; and

(3)    formalised the ruling by the Swiss tax authority that Mr Lochtenberg’s Swiss tax liability would be limited to tax on the CH component.

31    The Preamble to the September 2004 Agreement stated, as translated from German to English:

A.    In accordance with the terms of the Profit Participation Agreement/Incentive Profit Participation Agreement (PPA/IPPA) existing between the parties ML [the taxpayer] acquired on return of his participation rights a claim to the amount of the contractually agreed purchase price corresponding to USD 30,387,785.-, which was to be paid by GI[AG] in 20 equal instalments due respectively at the end of every quarter of a year (firstly on 31st January 2004).

B.    Due to circumstances of place of work over the course of his employment by GI[AG], ML’s tax obligations with the cantonal Zug Tax Administration were determined as follows: A partial amount of USD 18,192,540.- is liable as 2004 income to direct federal tax and to Canton of Zug income tax. ML bears tax obligations at his residence in Australia for the remaining amount from the sale of his participation rights (USD 12,195,245.-).

32    Between 1 April 2005 and 1 January 2009, while a resident of Australia, Mr Lochtenberg received quarterly instalments from GIAG, namely, two separate payments, one relating to the AU component, and one relating to the CH component as evident from his USD currency bank account statements which were before the Tribunal.

33    On or around 6 December 2006, Mr Lochtenberg was sent a copy of the Zug Canton tax assessment. Mr Lochtenberg paid a total of Swiss WHT of USD 5,849,658.61 and Swiss income tax of CHF 1,032,027.45.

The Tribunal’s reasons

34    At [86], the Tribunal began by stating its agreement with the submissions advanced on behalf of the respondent Commissioner. Those submissions included, first, that there was no requisite connection between the total Amount and the foreign service of Mr Lochtenberg: the Amount was not calculated by reference to either the period of time or the place in which Mr Lochtenberg was employed or performed services for the Glencore group. Second, the Commissioner had submitted that the agreement of 5 May 2004 and the Declaration did not alter the way Mr Lochtenberg’s entitlements were to be calculated. Third, the Commissioner had submitted that the September 2004 Agreement recorded an ex post facto division of the Amount, which did not depend to any degree on Mr Lochtenberg’s foreign service. Fourth, the discussions and the September 2004 Agreement did not recharacterise Mr Lochtenberg’s earnings as being derived from foreign service, after the foreign service was complete. Fifth, the Commissioner had submitted that the division of the Amount reflected in the September 2004 Agreement was referable to the appreciation in the value of Mr Lochtenberg’s GS (or PU) and shares while he was a resident of Switzerland, which was considered appropriate to determine his Swiss tax obligations and was not a calculation referable to foreign service. The division reflected his share of the profits of GIAG for the period he lived and worked in Switzerland, as distinct from any assessment of the value of the services he performed while working in Switzerland.

35    The Tribunal concluded the payments received from GIAG were not derived by Mr Lochtenberg from his foreign service. It reasoned that Mr Lochtenberg became entitled to receive the Amount as at the termination of his employment and the Amount he was entitled to receive represented the aggregated share of the profits earned by GIAG during certain periods, as calculated under both the PPA 1999 and the IPPA 2001. The calculation of the Amount depended on Mr Lochtenberg’s allocation of GS and shares under the PPA 1999, and his allocation of PU and shares under the IPPA 2001. It was calculated by reference to GIAG’s profits during particular periods, which were aggregated at the relevant Notice Date, being the termination date of Mr Lochtenberg’s employment which, the Tribunal observed, was evident from the terms of the PPA 1999 and the IPPA 2001. That calculation, which had to be performed by the Glencore Group with reference to its profits, had no regard to Mr Lochtenberg’s place of employment.

36    At [87], the Tribunal found that although the Amount was divided into the CH component and the AU component for Swiss tax purposes, and Mr Lochtenberg did receive separate instalment payments representing each component, that division, or the Declaration and the September 2004 Agreement, did not change the basis of Mr Lochtenberg’s entitlement to the Amount. The Tribunal did not accept that the discussions that ensued between Mr Lochtenberg and GIAG resulted in a variation of the PPA 1999 and IPPA 2001 such that Mr Lochtenberg received two amounts, one for foreign service and the other for non-foreign service. This was because both the Declaration and the September 2004 Agreement referenced the calculation of the Amount and, on their own terms, the CH component and the AU component were components of the Amount, which had already been calculated and agreed before the division was negotiated. The Tribunal found that the division of the Amount was for another purpose, namely, Swiss tax purposes. The Tribunal accepted that for Swiss tax purposes, the Swiss tax authorities were apparently satisfied for Mr Lochtenberg to work out the accumulated appreciation of his entitlements for the period while he was a resident in Switzerland. However, that did not render that part of the Amount as foreign earnings derived from foreign service.

37    At [88], the Tribunal found that Mr Lochtenberg was entitled to receive the Amount and it was payable to him irrespective of his days of service in Switzerland or the value of the services he performed in Switzerland. The Tribunal found that the Amount represented deferred compensation payable to him, regardless of where he worked for the Glencore Group because of the terms of the Glencore Profit Participation Plan documents. It followed, the Tribunal reasoned, that Mr Lochtenberg did not “derive” the Amount from foreign service as it was not due to him for his service in a foreign country. Accordingly, there was no correlation or nexus between the CH component and his foreign service.

38    At [89], the Tribunal found that although there was a division of the Amount for Swiss tax purposes, based on Mr Lochtenberg’s period of residence and work in Switzerland, that apportionment was not permitted under s 23AG(1). The statutory test concerned itself with “any foreign earnings derived by the person from that foreign service” being exempt from tax, the Tribunal reasoned, concluding that no apportionment was contemplated by the statutory test.

39    At [90], the Tribunal said Mr Lochtenberg had been allocated all his GS (or PU) and shares in the Glencore Profit Participation Plan while he was a resident in Australia and before he worked for the Glencore Group in Switzerland. He was entitled to receive the Amount under the Glencore Profit Participation Plan (which was calculated by reference to particular periods) whether he worked in a foreign country or in Australia. The Tribunal reasoned that the fact that he was liable to Swiss income tax in relation to part of the Amount, namely, referable to the CH component, had to do with his negotiations with the Swiss tax authorities regarding the period of his residency in Switzerland and had no bearing on his Australian income tax position. It did not follow, for example, that his agreement with his employer and the Swiss tax authorities means that the AU component was the only part taxable in Australia. The Tribunal concluded that Mr Lochtenberg was taxable in Australia on the Amount because he received the payments representing deferred compensation when he was a resident of Australia and because s 23AG(1) did not apply so as to exempt the Amount or any part of it.

The questions of law (as framed by the applicant)

40    As set out in the notice of appeal, the questions of law were:

Questions of law

1.    Whether on the facts found by the Tribunal at [7] to [32] of its Reasons dated 30 November 2018 (Reasons) the part of the Amount received by the Applicant referred to in the Reasons as the ‘CH Component’ is exempt from income tax under s 23AG(1) of the Income Tax Assessment Act 1936 (ITAA 1936).

2.    Further or in the alternative, whether the CH Component of the Amount was income ‘derived … from … foreign service’ within the meaning of those terms in s 23AG(1) of the ITAA 1936 properly construed.

3.    Whether, if the contract relating to remuneration for services performed wholly or partly in a foreign country specifically allocates or apportions part of the remuneration to the foreign service, that part of the remuneration will constitute income derived from the foreign service for the purposes of s 23AG(1) of the ITAA 1936.

4.    Whether for an amount to be income ‘derived … from … foreign service’ within the meaning of s 23AG(1) of the ITAA 1936 it is necessary that the amount be ‘due to the taxpayer for his service in a foreign country’ (Reasons at [88]).

41    The grounds were as follows:

1.    In order to be income ‘derived from foreign service’ within the meaning of s 23AG of the ITAA 1936, the income must have the requisite connection with the foreign service.

2.    If the contract relating to the remuneration for services performed wholly or partly in a foreign country specifically allocates or apportions part of the remuneration to the foreign service, that part of the remuneration will have the requisite connection with the foreign service and be income derived from the foreign service.

3.    While under the IPPA 2001 (and the earlier PPA 1999) the quantum of the Amount was calculated as an undissected sum, the agreement made on or about 4 May 2004 referred to in the Reasons at [30(a)] expressly apportioned the Amount as between the ‘CH Component’ and the ‘AU Component’; the former being the part calculated to reflect the appreciation of the Applicant’s profit participation during the period of time he worked for Glencore International AG (GIAG) in Switzerland which was referable to his Swiss residency and his employment in Switzerland, and the latter being part calculated to reflect the appreciation of the Applicant’s profit participation during the period of time he worked for Glencore Australia Pty Ltd in Australia: Reasons [26] and [30(a)].

4.    The agreement referred to at [2] above constituted a variation of the IPPA 2001 (and PPA 1999) by substituting a new form of Declaration of Assignment and Release (Declaration) in place of Annex C to each of the IPPA 2001 and the PPA 1999.

5.    By reason of the agreement referred to at [2] above, at the time when the Applicant became entitled to receive the Amount on his signing the Declaration, the Amount was not an undissected sum because it had been expressly apportioned, by agreement of the parties to the contract, into the CH Component and the AU Component.

6.    By reason of the foregoing, the CH Component of the Amount received by the Applicant had the requisite connection with his foreign service so as to have the character of an amount derived from his foreign service because it was the part of the Amount expressly allocated or apportioned to his foreign service by the agreement between the Applicant and GIAG, reflecting the appreciation of the Applicant’s profit participation during the period of time he worked for GIAG in Switzerland (ie his foreign service).

7.    Contrary to Reasons [86], the Applicant did not become entitled to the Amount until he signed the Declaration, and this occurred after the division of the Amount into the CH Component and the AU Component. Further, the mere fact that the quantum of the Amount was calculated by reference to profits of GIAG and its subsidiaries over the entire period the Applicant held his PPUs and that calculation had no regard to the Applicant’s place of employment does not prevent a part of the Amount having the necessary connection to the foreign service if that part is allocated to that foreign service by agreement between the parties, as occurred in the present case.

8.    Contrary to Reasons [87], the Amount had not been calculated and agreed before the division into the two components was negotiated: see Reasons [26]. Rather, the agreement referred to at [2] above had the effect of expressly allocating the Amount into those two components with the result that the Applicant received the CH Component (or an Amount not less than the CH Component) for his foreign service. The fact that the division of the Amount into the two components was done for the purpose of meeting the Applicant’s Swiss tax obligations is beside the point – it provides the explanation for why the division was done but does not detract from the fact that it was done.

9.    Contrary to Reasons [88], it is not necessary in order for income to have the required connection with foreign service that it be payable by reference to the days of service in the foreign country or the value of the services performed in the foreign country.

10.    Contrary to Reasons [89], the statutory test in s 23AG(1) does ‘contemplate’ apportionment of income falling within the definition of ‘foreign earnings’ between foreign service and service which is not foreign service

The parties’ submissions

42    Mr Lochtenberg submitted that the issue was whether the Tribunal erred in law in concluding that each receipt of the CH component of the total amount that became payable by reason of the termination of the applicant’s employment did not have the character of income derived from foreign service within the meaning of s 23AG.

43    He relied on two types of error of law.

44    The first was that whether facts fully found fall within the provisions of a statute properly construed is a question of law. Reference was made to Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 288-289; and Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [24]-[27]. It was submitted that in the present case the facts admitted of only one conclusion. Mr Lochtenberg referred also to Ivanac v Deputy Commissioner of Taxation (1995) 60 FCR 417 at 419 per Lee J.

45    The second alleged error of law was that the Tribunal had applied the wrong test. Mr Lochtenberg referred to Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; 186 FCR 410 at 415.

46    Mr Lochtenberg submitted that the CH component was earnings and it was clear that it was deferred compensation for services as an employee. The question was whether those earnings were derived by the taxpayer from foreign service. The ordinary meaning of “derived” was to receive or obtain from, or arising or accruing from, a source or origin. The question therefore before the Tribunal was whether the CH component had its source or origin in Mr Lochtenberg’s foreign service, that is, his employment by GIAG in Switzerland, which required a process of characterisation of the CH component. That was not the same as asking whether it had its source in Switzerland.

47    Mr Lochtenberg submitted that the key factual findings made by the Tribunal relevant to the application of s 23AG(1) to the CH component, and the short points to be made in respect of each, were as follows:

(1)    The taxpayer’s foreign service in Switzerland determined the point at which the amount reflecting his share of GI’s profits was to be calculated and would become payable. This was submitted to be the distinction with Blank’s case where the position was the other way round: it was Mr Blank’s service in Australia which determined the point at which he became entitled to receive an amount from GI; the converse was so in the present case.

(2)    When GIAG provided to the taxpayer the final calculation of the Amount on 4 May 2004, it was apportioned by GIAG into two parts: the CH component, which was calculated by GIAG to reflect the appreciation in the value of his profit participation during the period that he work in Switzerland, and the AU component, which was calculated by GIAG to reflect the appreciation the value of his profit participation during the period that he worked in Australia.

(3)    At the meeting on 4 May 2004, GIAG and the taxpayer made an agreement (recorded in the Declaration and its annexures) that the Amount payable to him would be apportioned into two parts – the CH component and the AU component – which was before any amount became due as a debt to the taxpayer, or any payment was received by him.

(4)    The September 2004 Agreement documented the 4 May 2004 agreement to apportion the total Amount payable into those two parts, as well as varying the time for payment of the instalments.

(5)    The quarterly instalments received by the taxpayer in the period from 1 May 2005 to 1 January 2009 reflected the apportionment of the total Amount into the two parts – that is, what he received were two separate payments, one being an instalment of the AU component and the other being an instalment of the CH component (at [31] of the Tribunal’s reasons). It was submitted that this last finding was particularly important as the issue before the Tribunal was whether the CH component of the Amount received had the character of income derived from foreign service within the meaning of s 23AG. The issue was not whether the total Amount had that character. That question had to be asked at the time of receipt of each of those amounts, Mr Lochtenberg submitted, because he was a cash basis taxpayer. The Tribunal erred, it was submitted, particularly at [88] of its reasons, in not focusing on what was actually received but on the total Amount that was calculated at an earlier time under agreements as the amount which was to be paid in the future. In Blank’s case, by contrast, Mr Blank received only one amount on each of the dates the instalment was paid, and there was no apportionment.

48    As to the question of apportionment, Mr Lochtenberg submitted that Blank’s case did not dictate the answer in the present case, because the context there was of an undissected amount received by the taxpayer. At [101]-[110] the plurality judgment in the Full Court did not say that the parties could not agree by a formula to calculate a lump sum and then allocate that lump sum between periods of foreign service and non-foreign service; indeed, at [105] the plurality recognised that it may be possible to create an agreed formula that permitted a proportional per diem calculation referable to foreign and non-foreign service. Neither did that judgment say that the method of express apportionment chosen by the parties in the present case was not appropriate, that way being that the amount was divided into the AU component and the CH component, representing the appreciation whilst employed in Australia and Switzerland respectively, by the agreement reached in May 2004; rather, the plurality in Blank’s case in the Full Court, at [109], noted that Mr Blank had not argued for an apportionment which focused on the appreciation of his profit participation before he came to Australia in 2001.

49    The Tribunal erred at [87], Mr Lochtenberg submitted, by treating the fact that the amount was a lump sum calculated not by reference to periods in and outside Australia as determinative. It was submitted that the mere fact that the amount payable was a lump sum calculated by reference to profits of the employer and not to where the work was done did not prevent an apportionment, where the agreement or statute allowed for an apportionment, on a basis referrable to the period worked in Australia and outside Australia.

50    Mr Lochtenberg referred to the following United Kingdom cases dealing with the words “attributable to the foreign service”: Varnam (Inspector of Taxes) v Deeble [1985] STC 308 at 516G; Platten (Inspector of Taxes) v Brown [1986] STC 514 at 414-415; Coxon v Williams (Inspector of Taxes) [1988] STC 593 at 668H; and Leonard v Blanchard (Inspector of Taxes) [1993] STC 259. Mr Lochtenberg accepted that the statutory words were different, but submitted that if, as the cases in England accepted, the parties can by contract apportion part of the remuneration to foreign service, and that leads to the conclusion that the amount is attributable to the foreign service, then that should, together with the other findings that the Tribunal has made, lead to the conclusion that the amount so attributed here was derived from foreign service.

51    As to the fact that the English cases did not deal specifically with a contractual apportionment which occurs in a separate agreement rather than the contract of employment itself, Mr Lochtenberg made three submissions. First, there was nothing in the English decisions to suggest that it mattered when the apportionment was made. They simply ask whether as a matter of contract the emoluments have been apportioned. Second, and significantly, the apportionment here was made by the 4 May 2004 agreement, before Mr Lochtenberg by signing the Declaration made his contingent entitlement to the Amount absolute. Third, what he actually received was 16 separate instalments of two apportioned amounts, the CH component and the AU component, not of one single undissected amount.

52    Mr Lochtenberg submitted there was only one conclusion reasonably open, which was that the CH component was derived from Mr Lochtenberg’s foreign service. It was attributable to his foreign service, and given all the other circumstances was derived from it.

53    Mr Lochtenberg also submitted that each of the reasons given by the Tribunal for the conclusion that the CH component was not “derived from foreign service” involved an erroneous construction of s 23AG(1).

54    First, Mr Lochtenberg submitted that, contrary to the Tribunal’s reasons at [86], the applicant did not become entitled to the Amount until he signed the Declaration on 4 May 2004 (per cl 8.5 of each agreement), and this occurred after the division of the Amount into the CH component and the AU component. As at the termination of his employment, he was only contingently entitled to receive the amount. By the time he signed the Declaration, an agreement divided the Amount into two parts, and what he signed recorded or reflected that agreement because it also identified the segregation of the total Amount into two parts, so what he became entitled to receive and was actually payable to him were these two amounts. Further, contrary to the Tribunal’s reasons at [86], the mere fact that the Amount was calculated by reference to profits over the entire period he held his PPUs and not by reference to his place of employment did not prevent a part of the Amount having the necessary connection to the foreign service if that part was allocated to that foreign service by agreement between the parties, as occurred in the present case. Mr Lochtenberg submitted that it was an error for the Tribunal to say he became entitled, other than contingently, to the Amount before delivery of a Declaration, which he never did in the form which the agreements provided. To fail to recognise the contingency was to fall into error because that was highly relevant to the characterisation of what he received, which was not the amount but two separate parts.

55    Second, Mr Lochtenberg submitted, contrary to the Tribunal’s reasons at [87], the Amount had not been calculated and agreed before the division into the two components was negotiated: see the Tribunal’s reasons at [26]. It was irrelevant that the formula for calculation of the Amount had been agreed before the division of the Amount into the AU and CH components was negotiated. What was relevant and important was that the agreement made on 4 May 2004 and documented in the September 2004 Agreement expressly divided the Amount into two components, one of which had the character of an amount derived from his foreign service. The fact that the division was done for the purpose of meeting his Swiss tax obligations, which provided the explanation for why the division was done, did not detract from the fact that it was done. Mr Lochtenberg accepted that, if the amount had already become due, the parties could not by agreement try and change the character of the payment, but that did not occur here, for essentially the reasons summarised at [54] above.

56    Third, Mr Lochtenberg submitted, contrary to the Tribunal’s reasons at [88], it was not necessary in order for income to have the required connection with foreign service that it be payable by reference to the days of service in the foreign country or the value of the services performed in the foreign country, or that the income be “due to [the taxpayer] for his service in a foreign country” (applicant’s emphasis). The statutory criterion was that the income be derived from the foreign service, in the sense that it had its source in the foreign service, and not that it be payable for undertaking the foreign service.

57    Fourth, Mr Lochtenberg submitted, contrary to the Tribunal’s reasons at [89], the statutory test in s 23AG(1) did “contemplate” apportionment of income falling within the definition of “foreign earnings” between foreign service and service which is not foreign service. Mr Lochtenberg submitted that nothing in Blank’s case supported that conclusion and it was wrong in law to say that the section did not contemplate apportionment of amounts: see the submission summarised at [48] above. All that Blank’s case dealt with was whether the statutory test contemplated an apportionment of a lump sum of the sort involved in that case.

58    Fifth, Mr Lochtenberg submitted, none of the matters mentioned in the Tribunal’s reasons at [90] supported the conclusion that the CH component was not income derived from foreign service.

59    In concluding, Mr Lochtenberg submitted that the Tribunal had failed to address the correct question, which was: what was the correct characterisation of the CH component at the time it was received? He submitted that the Tribunal applied the wrong test to the particular facts: the test that was applied was to consider whether the lump sum had the character of an amount derived from foreign service rather than focusing on whether the parts of it that were actually received had that character. Alternatively, the Tribunal reached the conclusion which was not reasonably open.

60    The Commissioner submitted that s 23AG(1) exempted from tax “foreign earnings derived by [a taxpayer] from foreign service” for a continuous period of 91 days or more. As was pointed out in Blank’s case in the Full Court at [100]-[102], s 23AG only applied where there is the requisite connection between the taxpayer’s foreign service and the foreign earnings. That connection is contained in the word “derived”, which directs attention to whether the foreign earnings arise or accrue from the foreign service (Harding v Federal Commissioner of Taxation (1917) 23 CLR 119 at 131 and 133). It thus raised a question of source.

61    The Commissioner submitted that determining the source of income was a “practical hard matter of fact” to which no a priori rules of law were applicable, referring to Federal Commissioner of Taxation v Mitchum (1965) 113 CLR 401 at 406 per Barwick CJ with whom Menzies and Owen JJ agreed:

It has been said authoritatively that the question as to what is the source of income or whence it is derived for the purposes of the Act is a “hard practical matter of fact” and that the source of income is not so much a legal concept but that which a practical man would regard as the real source of income, see Nathan v. Federal Commissioner of Taxation [(1918) 25 CLR 183 at 189, 190]. It would therefore be unlikely that there should be some rule of law which would compel the adoption of a particular conclusion where the facts themselves leave room for more than one view. However, counsel for the Commissioner sought to extract from the decision of this Court in the Federal Commissioner of Taxation v. French [(1957) 98 CLR 398] a rule of law that where the consideration for the payment of the money which constitutes income from personal exertion is the performance of work or the rendering of services, the source of that income is the place at which the work is done or the services performed, unless there are special circumstances necessitating or at any rate warranting a contrary conclusion.

…

In my opinion, the submission of the Commissioner is unacceptable. The conclusion as to the source of income for the purposes of the Act is a conclusion of fact. There is no statutory definition of “source” to be applied, the matter being judged as one of practical reality. In each case, the relative weight to be given to the various factors which can be taken into consideration is to be determined by the tribunal entitled to draw the ultimate conclusion as to source. In my opinion, there are no presumptions and no rules of law which require that that question be resolved in any particular sense.

62    The Commissioner submitted that the Tribunal identified, at [51], the key issue which was whether any part of the Amount received by Mr Lochtenberg was income derived from his service as an employee of GIAG in Switzerland. The Tribunal did not focus on the whole of the Amount but on whether any part of the Amount was income so derived.

63    The Commissioner submitted that the applicant’s burden was to establish that the CH component was derived only from the foreign service, because that was the proposition which emerged from the plurality’s judgment in Blank’s case in the Full Court at [102]. In order to succeed, the Commissioner submitted, the applicant must demonstrate that the Tribunal fell into an error of law in concluding, as a matter of fact, that the CH component was not derived (that is, did not arise or accrue from) the applicant’s foreign service (as opposed to the applicant’s foreign service and his Australian service).

64    The Commissioner submitted that the Glencore Profit Participation Plan agreements in the present case were on all fours with the ones considered by the plurality in Blank’s case in the Full Court at [104]-[105], as follows:

The Amount, which constituted the earnings at issue, represented the appellant’s aggregated share of the profits earned by GI[AG] as at the termination of his employment, as calculated under the IPPA 2005. As explained below, under the IPPA 2005 (as under the previous profit participation agreements) the Amount was incapable of apportionment as between earnings from foreign service, on the one hand, and earnings not from foreign service on the other because the agreed method of calculating that Amount did not allow for that distinction to be made. The Amount was incapable of being calculated on a per diem basis as the appellant proposed. The appellant's entitlement to the Amount depended on his allocation of vested PPUs (whether GS or Phantom Units) and GI’s profits during particular periods, aggregated at the relevant Notice Date (here, the termination of his employment). The calculation was made irrespective of the days on which the appellant was employed at any particular place. No integer in the calculation PPUs or otherwise was affected by the place in which the appellant rendered services to a Glencore Group company. Furthermore, the agreed calculation contemplated periods that would not align with the proportional per diem basis proposed by the appellant. For instance, the appellant's proposed proportional per diem basis did not attempt to align the number of days of the appellant's service in foreign countries with GI’s profits in the same time span or spans. The vesting period requirement further confirms that any attempted per diem formula would be an artificial and inappropriate basis for apportionment.

While it may be possible to take apart the agreed formula and to create another formula that permitted a proportional per diem calculation referable to foreign and non-foreign service, this is not the formula that the parties agreed should be used to arrive at the Amount that would be paid to the appellant on the termination of his employment. The Amount was a single figure, calculated in an agreed way at an agreed time. Even if the IPP per PPU during a particular period could be ascertained on a daily basis, and whether that day was spent in foreign service or non-foreign service could be determined (a more nuanced approach than that proposed by the appellant), the calculation of the Amount required an aggregation of the IPP per PPU over the entire period in which each PPU stood in the appellant's name, from the point of allocation until the Notice Date. In the appellant’s case, this entire period covered both the period of the appellant's employment in “foreign service” and his employment in non-foreign service. In calculating the Amount it was irrelevant that the appellant had been allocated a PPU at the time when he said he was employed in foreign service. No part of the Amount can be properly described as earnings “derived … from  … foreign service”. Rather, the whole of the Amount was aptly described as derived from both foreign service and non-foreign service.

65    The Commissioner submitted that those observations were wholly applicable to the terms of the Glencore Profit Participation Plan agreement signed by the applicant. It followed that the whole of the applicant’s case, that the amount labelled CH component must be viewed as derived only from the applicant’s foreign service, must hinge on the Declaration which he signed on or about 4 May 2004.

66    The Commissioner submitted that the Tribunal was correct to conclude at [87]-[88] of its reasons that nothing in the arrangements of May and September 2004 gave any part of the Amount a new and different source from that which it had under the provisions of the Glencore PPP such that that part of the Amount could be said to have derived from the taxpayer’s foreign service as opposed to his foreign service and Australian service. On the contrary, the Commissioner submitted, under the terms of the Declaration the payment of the Amount by GH was the undivided consideration for the assignment by the taxpayer of his GS to GIAG and the relinquishment of his claims with respect to the PUs allocated to him. In other words, under the Declaration the Amount was paid in satisfaction of his claims under the Glencore Profit Participation Plan determined by his share of the audited net profits of GIAG ascertained by reference to the GS and PUs issued to him. The division of the Amount into the CH component and the AU component appeared only in an “Annex A” to the Declaration and played no part in the substantive provisions of the Declaration. The assertion that two amounts were payable to the applicant under the Declaration was erroneous on the face of the Declaration and was correctly rejected by the Tribunal at [87]. As the Tribunal also found at [87], that division was made for the purposes of ascertaining the taxpayer’s Swiss tax obligations in relation to the Amount, not for the purposes of determining the amount to be paid to the taxpayer.

67    The Commissioner submitted that the Declaration identified in the recital a single sum of USD 30,387,785 to be paid by GH in consideration of which the employee assigned all GS of GIAG and relinquished his claim to payments with respect to the PUs allocated in his name together with all preferential and ancillary rights to GI. Those rights represented the result of both the taxpayer’s foreign service and domestic service. That part of the Declaration gave no support to the applicant’s contention, and was inconsistent with the taxpayer’s proposition that as a matter of law there was only room for the view that the CH component was derived from the applicant’s foreign service. The part on which the applicant relied was headed “Calculation”. The Commissioner submitted that this played no part in the substantive formulation of the Declaration. It was nowhere stated, in the Calculation or in the body of the Declaration, that the division into three parts of the Calculation had any geographical significance. It did not say that the part now labelled the CH component was to be regarded as having been derived, and only derived, from the Swiss employment. The Commissioner submitted that the whole of the Amount was derived from both the applicant’s foreign service and domestic service, as arose from the terms of the agreements as analysed in Blank’s case and because under the substantive provisions of the Declaration the amount was paid in satisfaction of those entitlements.

68    The Commissioner submitted that once it was understood that the Declaration was done for reasons quite distinct from any question of derivation, and to answer a question under Swiss tax law, a lot of the claimed probative force was denied to it. At [87], the Tribunal correctly rejected the applicant’s contention that the Declaration and the 28 September 2004 Agreement effected a variation of the basis upon which the taxpayer entitlement to the Amount was derived. The Tribunal found, at [87], that the overall Amount had been calculated before the CH component and the AU component were arrived at, and that was evident on the face of the Declaration. The calculation of the CH component reflected the appreciation while the applicant was a resident of Switzerland of his GS and PUs which had been allocated while he was a resident of Australia: reasons at [90]. The CH component and the AU component were not integers of the Amount but products or divisions of it. None of the material said that the CH component was to be regarded as consideration only for the services in Switzerland or that the CH component represented an assessment of the value of the services provided in Switzerland; these were the factors adverted to by the Tribunal in [88] of its reasons. The Commissioner submitted that the Calculation, an ex post facto division into the CH component and AU component for Swiss tax purposes of the Amount which relevantly derived from both the foreign and Australian service, did not sever the factual connection between the CH component and the applicant’s Australian service. It could not logically convert any part of the Amount into a part derived only from the taxpayer’s foreign service so as to give to it the requisite connection with foreign service which s 23AG required, as explained in Blank’s case. There was no rule of law to that effect such that the Tribunal’s failure to come to that conclusion was an error of law. Nor could it be said that there was no room for any other conclusion as a result of the Declaration but that the CH component was derived, and only derived, from the foreign service.

69    The Commissioner submitted that what the Tribunal said at [89] was that where an amount was derived from both foreign service and domestic service, one could not apportion that to treat some part of it as derived from foreign service. That was made clearer by what the Tribunal said at [85], which was to the effect that because the whole of the Amount had a common origin in the operation of the terms of the agreement, which involved foreign service and domestic service, and because the applicant did not claim the whole of the Amount was exempt, his reliance on s 23AG as exempting part of the Amount was doomed to fail.

70    The Commissioner submitted the question was one of derivation, not apportionment, and where it could not be said that any particular amount was derived from foreign service as opposed to foreign service and domestic service, no apportionment was permissible to draw a line which the section did not contemplate. Whether apportionment was possible, or the significance of any apportionment the parties carried out in this case, was not to the point. Rather, the Commissioner submitted, the point was whether the division effected in the Declaration severed the factual connection that that part now called the CH component had with the Australian service. The Tribunal answered that no, and that view was clearly open to it.

71    The Commissioner submitted that the time of derivation, and the fact that the applicant was a receipts based taxpayer assessable at the time of derivation, did not shed any light on the question of the origin or source of the CH component, and in particular whether that origin or source differed from the origin or source of the Amount as derived from the agreements under which it arose. That question was not affected by the timing of when it was received and none of the Tribunal’s analysis was affected by that consideration.

72    The Commissioner submitted that the English authorities involved a statutory scheme which, both in form and text, was very different from s 23AG. The Commissioner referred to Federal Commissioner of Taxation v French (1957) 98 CLR 398 at 415 where Kitto J said, agreeing with Williams J at 412 and with whom Dixon CJ agreed at 405-406:

I agree that the decisions of the House of Lords and the Court of Appeal to which we have been referred cannot be regarded as authorities on the construction of the Act we have here to consider. They are decisions on legislation very different in its terms and very different in its plan. The conceptions to which they give effect have been evolved in consequence of an important step in construction which was taken by the House of Lords in the case of Colquhoun v. Brooks [(1889) 14 App. Cas. 493] for the purpose of harmonising particular provisions of that legislation.

73    The Commissioner submitted that, contrary to the applicant’s submission, the words “derived … from foreign service” in s 23AG(1) were not similar to the words “attributable to duties performed outside the United Kingdom” in the relevant UK provision, Sch 7 to the Finance Act 1977 (UK) at [2]. In its ordinary meaning, “attribution” referred to “[t]he assigning or ascribing of a character or quality as belonging or proper to anything” (Oxford English Dictionary, 2nd Ed 1989). A statutory task of attribution is apt to raise mixed questions of fact, law, degree and characterisation. It was a task distinct from the statutory inquiry directed by s 23AG(1) whether foreign earnings were derived (ie, arose or accrued) from foreign service (as opposed to foreign service and domestic service) which raised a factual inquiry as to source. Even in their own terms, the Commissioner submitted, the English authorities did not take the applicant’s case much further, referring in particular to Varnam v Deeble at 516 where Brown-Wilkinson LJ referred to the attribution falling to be made by reference to the taxpayer’s contractual right to emoluments for the work performed.

74    The Commissioner submitted that any omission, at [86] of the Tribunal’s reasons, of reference to the execution of the Declaration being a precondition went nowhere because none of the Tribunal’s reasons would have otherwise been affected.

75    In reply, Mr Lochtenberg submitted that the Tribunal had erred in asking itself whether he derived earnings for his foreign service. This was a completely different question to whether he derived earnings from his foreign service. The Tribunal erred in saying the reason why the amount was not derived from his foreign service was because it was not for his foreign service. Mr Lochtenberg submitted that what the Tribunal had said at [87]-[88], which involved a misconstruction of s 23AG, was that for an amount to be derived from foreign service it must be due to the taxpayer for his foreign service. Mr Lochtenberg submitted that the Tribunal applied the wrong test at [86], [87] and [88], read with [51], in failing to address the question whether the CH component received by the taxpayer, as separate payments which were income, was income derived from foreign service.

76    Mr Lochtenberg submitted it was not necessary, contrary to what the Tribunal seemed to think, that the contract specify the amount which is for the foreign service. The fact that it started as a global amount, or an undissected amount, which did not exclusively relate to foreign service did not prevent the parties from then apportioning it or the conclusion that the apportioned amount had that character. Mr Lochtenberg relied on the example of a salary expressed as a global sum but contractually apportioned by the parties. The fact that there was a global sum, agreed in advance as the salary, did not detract from what the English cases seemed to recognise, which was that you could have a contractual attribution of part of the salary to the foreign service. It followed, Mr Lochtenberg submitted, that [89] of the Tribunal’s reasons did not provide a correct conclusion in law as to why s 23AG was not satisfied in the present case.

77    Mr Lochtenberg submitted that the combination of all the material before the Tribunal led it to make findings, in particular those at [26], [28] and [30], to the effect that there was a division or apportionment of the amount into two components and, relevantly, that the CH component was an amount reflecting the appreciation of value of his PPU referrable to the period of his employment in Switzerland. Those findings could not be qualified by an attempt to construe the agreements in a way different from the finding that had been made, and the question was whether there was an error in the reasoning process in light of those findings. Mr Lochtenberg submitted the Tribunal reached the wrong conclusion because it should have found that the CH component had the requisite connection with his foreign service so as to have the character of an amount derived from the foreign service.

78    Mr Lochtenberg submitted the Tribunal at [87] looked at this question through the wrong prism of whether there was an undissected amount, and the position there was clear from Blank’s case, but that was not his case. The Tribunal then asked whether it made a difference that the amount has been apportioned and said, “well, no, it doesn’t because it’s not paid for the foreign service”, the “it” being the CH component that was at issue.

Consideration

79    The question whether the Tribunal has erred on a question of law in this case involves a close consideration of the Tribunal’s reasons. Much depends on the starting point. For example, Mr Lochtenberg submitted the correct test was to examine whether the CH component, which is the relevant item of income derived, had the requisite connection with his foreign service, not whether it was derived for or paid for his foreign service. However, in characterising the CH component there was in my opinion no error of law in the Tribunal starting from a characterisation of the entire Amount and reasoning from there to an ultimate conclusion that the CH component lacked the requisite connection with the taxpayer’s foreign service. To hold otherwise would be to require as a matter of law, as the starting point, Mr Lochtenberg’s end point.

80    The question before the Tribunal was one of characterisation which, in the present context, largely involves a conclusion of fact: see Mitchum. It is of course possible to make an error of law even in the characterisation of facts. But, as in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, the Court is not to be concerned with mere looseness in language or unhappy phrasing of the Tribunal’s reasons. When the Tribunal’s reasons are approached in this way much of the force goes out of Mr Lochtenberg’s submissions.

81    I do not accept that the matters of fact set out at [47] above establish that in this case there was only one answer to the statutory question or that those matters of fact show that the Tribunal asked the wrong question or applied the wrong test, having articulated the correct “key issue” at a number of places in its reasons. The Tribunal set out the correct statutory question at [51], [80], [86] and twice at [89]. Although it is possible to state the correct statutory test but not to apply it, the Tribunal’s reasons do not show that it did so, for the reasons that follow.

82    It was open to the Tribunal to proceed on the basis that it was not put that the entire Amount had the character of foreign earnings derived from the applicant’s foreign service.

83    The Tribunal then proceeded to consider a number of factors which were put forward, on either side, to show that the CH component had the character or did not have the character of earnings derived from the applicant’s foreign service. It did not treat any factor as determinative. I do not accept the applicant’s submission that the Tribunal treated as determinative whether the CH component was due to him for his foreign service: see [88] below.

84    The Tribunal, at [86], spoke of Mr Lochtenberg having become “entitled” to receive the Amount as at termination of his employment. In my opinion, it was not an error of law for the Tribunal not to explicitly reason that the applicant was at that time only contingently entitled, rather than absolutely entitled, to receive the Amount. The Tribunal gave detailed attention in its reasons to the terms of the agreements, and I would not infer that it failed to recognise the contingency. Further, as a matter of characterisation, it was open to the Tribunal not to find that the CH component had the character of earnings derived from the applicant’s foreign service. It was not irrelevant to that question of characterisation that Mr Lochtenberg was (contingently or otherwise) entitled to receive the amount at termination.

85    That two amounts, representing a division of the total Amount into what have been referred to as the CH component and AU component, were ultimately paid to Mr Lochtenberg did not necessarily establish that one of them had a different character to the total Amount. This is what the Tribunal found at [87] in concluding that that division into separate payments, or the Declaration and the September 2004 Agreement, did not change the basis of Mr Lochtenberg’s entitlement to the Amount. In so concluding, the Tribunal did not accept the result contended for by Mr Lochtenberg that the CH component was earnings from foreign service and the AU component from non-foreign service. There was no error of law in doing so.

86    I do not accept the submission on behalf of Mr Lochtenberg that, as a matter of law, it was irrelevant to the question of the character of the CH component that the formula for calculation of the Amount had been agreed before the division of the Amount into the CH component and the AU component. I also reject the submission that it was legally irrelevant that the division of the Amount into the two components was done for the purpose of meeting the applicant’s Swiss tax obligations. The timing and reason for the division of the Amount into the two components are factual matters which evidently may bear upon the character of payments representing one of those components upon receipt by the taxpayer.

87    Again, while the reasoning of the Tribunal at [88] by reference to the applicant’s days of service in Switzerland or the value of the services he performed in Switzerland may not, as a matter of law, be necessary to or determinative of the question of the character of the CH component, it is by no means legally irrelevant to that question. That reasoning does not establish that the Tribunal applied the wrong test.

88    Similarly, in my opinion, it is important to consider the context in which the Tribunal in [88] used the words “not due to him for his service in a foreign country”. The Tribunal first made the observations that the applicant was “entitled” (as to which see [84] above) to receive the Amount, which represented deferred compensation payable to him, regardless of where he worked for the Glencore Group because of the terms of the relevant arrangements. In using the words “as it was not due to him for his service in a foreign country” as a reason why Mr Lochtenberg did not “derive” the Amount from foreign service, criticised by the applicant, the Tribunal was not substituting for the statutory words “derive from” the words “due for” but was repeating, as one factor in its characterisation, its finding that the Amount was payable regardless of where the applicant worked.

89    I do not accept Mr Lochtenberg’s criticism of the reasoning of the Tribunal at [89]: in my opinion, it is not consistent with the approach required by Wu Shan Liang to read the Tribunal’s statements that “apportionment is not permitted under s 23AG(1)” and “[n]o apportionment is contemplated by the statutory test” as conveying an abstract or general proposition, divorced from the facts of the case before it. Rather, the Tribunal was reasoning that no apportionment was contemplated on the facts as found and characterised by it, as it had found that there was not the requisite connection between Mr Lochtenberg’s foreign earnings, whether identified as the Amount or the CH component, and his foreign service. This is made clearer by the part of Blank’s case in the Full Court referred to by the Tribunal, where it is explained that the primary judge in that case, without committing any error, considered “the facts of the case to make apportionment ‘neither appropriate nor possible’.”

90    Although, strictly speaking, it may well be overstating the position for the Tribunal to say that the views in Blank’s case of the judge at first instance and the reasons of the third judge, rather than the reasons of the plurality, in the Full Court were binding on it, no error flows from that statement.

91    I do not accept the submission on behalf of Mr Lochtenberg that none of the matters in [90] of the Tribunal’s reasons support the conclusion that the CH component was not income derived from foreign service. In my opinion, those matters were not irrelevant on the Tribunal’s reasoning and those matters do not show that the Tribunal asked the wrong statutory question.

92    I do not regard the four English cases on which the applicant relied, Deeble, Brown, Coxon, and Leonard, as assisting in the resolution of the question whether the Tribunal made a legal error. First, the legislation in England, which uses the language of income “attributable to duties performed outside the United Kingdom”, is materially different to the legislation of Australia: compare Federal Commissioner of Taxation v French. This is similar to a point made by the primary judge in Blank’s case, at [39], where his Honour distinguished between the statutory test in s 23AG(1) and the language of foreign earnings “reasonably attributable” to foreign service. Second, the analysis of the facts in those cases can cast no light on whether or not the Tribunal made a legal error in its analysis of the facts in this case.

93    In my opinion, the facts found by the Tribunal did not admit of only one conclusion and, further, the Tribunal did not apply the wrong statutory test.

94    The Tribunal was primarily concerned with a question of fact and characterisation, not of law. That question, similar to questions of source of income described in Mitchum as a “hard practical matter of fact”, was essentially as to what is the meaning of an ordinary English phrase as used in the statute in its ordinary sense: see Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12-13 per Davies and Beazley JJ, with whom Hill J agreed, approved in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [126]. I do not consider that the Tribunal erred in law by not applying the well-understood ordinary meaning of the phrase but giving to it a meaning or qualification of its own. Nor do I consider that the Tribunal adopted a meaning contrary to that which has been established by legal decisions.

Conclusion and orders

95    The appeal should be dismissed, with costs.

Associate:

Dated:    2 August 2019