Two Caymans investment LPs (“RCF IV” and RCF V”) whose limited partners were mostly U.S. residents, realized gains from the disposal of significant shareholdings in an Australian TSX-listed corporation (Talison Lithium) which, through a grandchild corporation held mining leases in Australia and carried out an operation there of mining lithium ores and processing them. Before finding that the U.S.-resident partners’ share of the partnership gains from selling the shares of Talison Lithium was not exempt under Art. 7 of the Australia-U.S. Convention because of the exclusion in Art. 13 for dispositions of (deemed) real property situated in Australia, Pagone J found that such gains were from “entreprises of” the U.S. limited partners, stating (at para. 57) that this expression encompassed “a passive investment activity" of the U.S.-resident partners, and stating further (at para. 57) that:
…in Thiel, their Honours said that “no element of repetition or system should be attributed to [the] expression” “enterprise of one of the Contracting States” by reference to the use of the words “carried on”… . Neither the RCF IV partnership nor the RCF V partnership is a separate taxable entity to be taxed separately from the partners and their agents. The taxable activity in each case was an investment in … Talison Lithium which was carried out on their behalf by their respective General Partners.