| Disclaimer This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your written advice
Authorisation Number: 1051308245268
Date of advice: 14 November 2017
Ruling
Subject: International issues – Foreign entities - Residency
Summary of the facts:
The company was originally incorporated in the XYZ as a fund to invest into Australia.
The company is currently not registered as a company in Australia nor is a resident of Australia for tax purposes.
The company intends to apply for registration as a company under section 601BC of the Corporations Act 2001(Cth).
Question 1
Will the Commissioner consider the company to be a resident of Australia for income tax purposes under subsection 6(1) of the Income Tax Assessment Act 1936 by virtue of the company’s registration as a company under section 601BC of the Corporations Act 2001(Cth)?
Reasons for decision
Subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that a person (which includes a company) is an ‘Australian resident' if that person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936).
Subsection 6(1) of the ITAA 1936 relevantly defines ‘resident or resident of Australia’ for a company as:
… (b) a company which is incorporated in Australia, or which, not being incorporated in Australia, carries on business in Australia, and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia.
The Commissioner will consider the company a resident of Australia if the company successfully registers itself as a company under section 601BC of the Corporations Act 2001 (Cth) as the company will then be a company which is incorporated in Australia.
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
