10.1. Is an Australian representative office of a foreign bank entitled to an ABN under section 8 of the A New Tax System (Australian Business Number) Act 1999 (ABN Act)?
For source of ATO view, refer to paragraphs 26 to 43 of MT 2006/1External Link - The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number.
No, an Australian representative office of a foreign bank is not entitled to have an ABN.
Entities that satisfy the requirements of section 8 of the ABN Act are entitled to an ABN. Paragraphs 44 to 67 of MT 2006/1 indicate that a broad range of associations and bodies are intended to be included as entities under the category of 'any other unincorporated association or body'. However, we consider that a representative office of a foreign bank is not an entity in its own right, but is merely a part of a larger entity, being the foreign bank. This view is supported by the decisions in Anglo Australian Foods Ltd v Credit Suisse (1989) 1 ACSR 69 and South India Shipping Corp Lt v Export-Import Bank of Korea (1985) 2 All ER 219.
Under subsection 8(2) of the ABN Act, a Corporations Act company is also entitled to an ABN. However, representative offices of foreign banks have Australian Registered Body Numbers (ARBNs) and, according to paragraph 22 of MT 2006/1, bodies with ARBNs are not Corporations Act companies.
An Australian representative office of a foreign bank is, therefore, not entitled to have an ABN because it is not an entity for ABN purposes and it is not a Corporations Act company.