Federal Commissioner of Taxation V Peabody - Transaction

Transaction

The Peabody family and Ray Kleinschmidt owned a business producing fly ash, also known as pozzolan, used in concrete. It was a set of four companies, called the Pozzolanic Group. Kleinschmidt owned 38%, and the Peabody family owned 62%, through a family trust. The trustee was a company of which husband and wife Terence and Mary Peabody were directors, and the beneficiaries were Mary Peabody and their two sons.

Terence Peabody had planned for some time to buy Kleinschmidt's share then float 50% of the total business on the Australian Stock Exchange. In late 1985 he and Kleinschmidt reached an agreement where Kleinschmidt would sell his shares for $8.6 million, an amount which was based on a business valuation and which was to remain confidential. Instead of Terence Peabody or the family trust buying out Kleinschmidt directly, the transaction was structured as follows.

The Peabody trust bought a shelf company called Loftway and Kleinschmidt sold his shares to it for the agreed $8.6 million. The Peabodys (now 100% owners) then had the Pozzolanic group companies convert those shares to "Z class" and restrict their rights, rendering them worthless. The shares the Peabody trust owned were then all that remained, a 100% interest in the business (apart from a few owned by Terence Peabody in his own name).

The money to pay Kleinschmidt was provided by Westpac Bank subscribing for $8.6 million worth of Loftway preference shares. The interest on them was obtained from the Pozzolanic companies paying dividends to Loftway, which in turn paid dividends to Westpac. The capital was repaid after the float when the Peabody trust lent $8.6 million from the float proceeds to Loftway in order for it to redeem Westpac's shares. That loan was subsequently forgiven by the trust.

This indirect structure had three apparent purposes,

• Kleinschmidt's shares "disappeared", so when Pozzolanic floated it was not necessary to disclose how much Kleinschmidt was paid. This had two motivations,

• It respected Kleinschmidt's wish for confidentiality.

• It wouldn't make the new investors wonder why they were being asked to pay a higher price after just a short period of time. Kleinschmidt's sale valued the total business at $24 million, the float price valued it at $30 million.

• If the Peabody trust bought shares from Kleinschmidt then sold them to the public, it would have incurred capital gains tax on the price difference.

• The money borrowed (from Westpac) to pay Kleinschmidt could be obtained at lesser cost by paying interest with dividends, because dividends were eligible for intercorporate rebates in Westpac's hands.

The last point is a little unclear. Perhaps it was that Loftway's ownership of Pozzolanic shares was not an income producing purpose, so plain interest payments would not be tax deductible. If so then that would be in a sense a consequence of using Loftway, rather than an independent rationale for the structure.