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Edited version of your private ruling
Authorisation Number: 1012440985662
Ruling
Subject: Requirement to appoint a public officer
Question 1
As a non resident company are you required to appoint a public officer?
Answer
As you are a non resident company that is not carrying business on in Australia you are not required to appoint a public officer under subsection 252(1) of the Income Tax Assessment Act 1936 (ITAA 1936).
This ruling applies for the following periods:
01/07/2012 to 30/06/2013
The scheme commences on:
01/07/2012
Relevant facts and circumstances
You are a registered overseas limited company.
Your registered office is in Country X.
Your directors are Country X residents.
You advised that you import your products to Country X and export them to Australia.
You advised that you do not have any staff in Australia or anybody that can act on your behalf as a public officer in Australia.
You advised that you operate solely out of Country X.
Relevant legislative provisions
Subsection 252(1) of the Income Tax Assessment Act 1936
Reasons for decision
Subsection 252(1) of the ITAA 1936 provides that every company carrying on business in Australia, or deriving in Australia income from property, shall at all times, unless exempted by the Commissioner, be represented for the purposes of this Act by a public officer duly appointed by the company or by its duly authorised agent or attorney.
The ATO view as to what is considered to be "carrying on business in Australia" is contained in Taxation Ruling 2004/15: Income tax: residence of companies not incorporated in Australia - carrying on business in Australia and central management and control (TR 2004/15).
Paragraph 9 of TR 2004/15 states that it is a question of fact when determining whether a company carries on business in Australia. It requires a consideration of where the activities of the company are carried on and is dependent on the facts and circumstances of a case.
You have advised the following in your application for a private ruling
· You are a registered Country X limited company.
· Your registered office is in Country X.
· Your directors are Country X residents.
· You import products to Country X and export them to Australia.
· You do not have any staff in Australia or anybody that can act on your behalf as a public officer in Australia.
· You operate solely out of Country X.
Based on the above factors in cannot be determined that you carry on a business in Australia. As per TR 2004/15 it is a question of fact when determining whether you carry on business in Australia and all the facts stated above confirm that your do not carry on business in Australia.
As you stated that you export your products to Australia, you do not bring the goods into Australia yourself. Based on your explanation the sale of the goods would occur in Country X prior to the goods being exported to Australia (and other countries).
As you are not carrying on a business in Australia you are not required to appoint a public officer under subsection 252(1) of the ITAA 1936.