Philip Diviny

Philip is a highly regarded tax lawyer, with a broad-based tax advisory and tax controversy practice.  He covers both federal and state taxes, and works in a variety of industries, including shipping, chemicals, property and health care.  Philip was a partner of K&L Gates (Middletons) for over 15 years, and is a Member of the Advisory Panel to the Board of Taxation.                                                                                     

Areas of Expertise

Philip’s expertise includes:

• Representing clients involved in ATO audits, including on transfer pricing, CGT and GST;
• Acting in Federal Court and Full Federal Court litigation against the ATO;
• Advising on all tax aspects of corporate transactions, including acquisitions, sales, restructures and demergers;
• Advising on the tax aspects of infrastructure projects and property developments;
• Applying for and obtaining private rulings;
• Acting for individual taxpayers in complex matters involving the ATO, including Project Wickenby and directors penalty notice issues; and
• Advising on tax-related professional negligence claims, against accountants and tax advisers.  

Select examples of Philip’s experience include:

• Acted on a transfer pricing audit and successful Federal Court and Full Federal Court litigation against the ATO that resulted in the transfer pricing laws being rewritten
• Acted for a consortium member on of its participation in a bid to build own and operate a major infrastructure asset including advice on structuring their substantial equity contribution into Australia, the impact of Division 250 of the Income Tax Assessment Act to the project, the utilisation of losses and Managed Investment Trust issues.
• Acted on the demerger of certain subsidiaries of an Australian listed company to a Singaporean company including applying to the ATO for a class ruling in respect of the Australian taxation implications of the demerger.
• Advised on the implications of the ATO’s TR 2002/D16 that sought to impose royalty withholding tax on time charters including preparation of a written submission to the International Tax Rulings Panel of the ATO and appearance before the panel which ultimately resulted in the ATO reversing their position when the final ruling TR 2003/2 was issued.
• Successfully conducted and resolved a capital gains tax audit as part of the ATO's HNWI program in respect of the application of CGT Event K6 including drafting of the objection, negotiation with the ATO and initiation and later settlement of Federal Court proceedings.
• Acted in applying for and obtaining product ruling PR 2011/11 for a Residential Investment Fund confirming the availability of the NRAS concessions to the fund.
• Acted for a Singaporean REIT on the acquisition of a major Australian group’s headquarters in North Sydney including Managed Investment Trust issues.
• Acted for an overseas sovereign wealth fund on the structuring of their existing and future Australian investments including consideration of Managed Investment Trust and sovereign immunity issues.
• Acted for a major insolvency firm on an application to the ATO for a private ruling concerning the GST implications of the establishment and management of a fund to pay the ongoing lease incentive obligations in connection with the failed development of a major property project, including a successful objection to the ruling initially granted.
• Acted for individual taxpayers involved in Project Wickenby matters in respect of residency issues and undisclosed foreign income including preparation of an objection to amended assessment and conduct of an AAT mediation.
• Acted for a leading aged care provider on the sale of existing and planned aged care facilities including consideration of revenue/capital issues, timing of derivation of income and capital gains, CGT discount issues and trust distributions.
• Successful conduct of a payroll tax audit initiated by the NSW State Revenue Office into an Australian listed company concerning the treatment of their contractors.
• Acted for a family group in respect of a professional negligence claim against their accountants arising from a Division 7A issue.
• Acted for a US company in respect of the tax issues associated with the development of a customer loyalty program in the pharmaceutical industry.
• Acted for numerous large corporate groups on the restructuring of their Australian operations including advising on the stamp duty and GST implications of those restructures.
• Advised various corporates, ranging from start ups to large established groups, in respect of employee share scheme issues.
• Acted in a Tasmanian Supreme Court case concerning whether a donation of land involving the assumption of a mortgage by the purchaser was exempt from duty as a charitable gift.