Corporate residency – ensuring offshore subsidiaries remain non-resident for tax purposes

The Commissioner of Taxation has taken the view that the Full High Court decision in Bywater Investments required him to change his long-held position on the test for corporate residency in Australia.

The Commissioner’s view is now set out in Taxation Ruling TR 2018/5, and accompanying guidance, PCG 2018/9.

At the NSW 12th Annual Tax Forum on 23-24 May, Clint Harding, CTA, (Arnold Bloch Leibler) looks at the implications for businesses and their advisers in the session ‘Corporate residency – a practical guide to ensuring your offshore subsidiaries remain non-resident for tax purposes’.

He was the winner of The Tax Institute’s Tax Adviser of the Year Awards for “Corporate Adviser of the Year” in 2018.

We spoke to Clint for this post.

He told us “I will be looking at corporate residency and how to determine where your central management and control sits.”

Addressing the key elements advisers need to understand, Clint will look at what is required to establish an overseas subsidiary as a non-resident, the records that need to be maintained and what changes to the decision-making function of an overseas subsidiary may need to be considered.

“My session is designed to help delegates navigate the complex task of determining where a company is tax resident. I’ll be providing practical guidance using case studies that highlight the issues involved.”

Looking at what level of ‘influence’ as opposed to ‘control’ by shareholders or a parent company is permissible, Clint’s session will also cover how this should best be communicated and evidenced. He will also look at the issues for subsidiaries in a tax treaty jurisdiction.

“Delegates should leave my session better placed to identify the touchpoints of any residency analysis, and able to assist their clients in implementing procedures that ensure no surprises.”

Clint’s session is one of 14 in the Forum’s Corporate Stream. Other sessions in this stream look at tax governance and risk management; stapled structures; taxation and digital services; the ATO’s use of data and advanced analytical techniques; key corporate tax cases; anti-hybrids; the FIRB tax consultation process; and more.

Australia’s largest tax program, the Forum features 42 sessions across its Corporate, SME and Hot Topics streams.

Of the other sessions at the Forum, Clint told us he is particularly looking forward to hearing from Richard Hendriks, CTA, (Greenwoods & Herbert Smith Freehills), on ‘Current Issues in M&A / Demergers’.

Clint has been affiliated with the Institute since he first arrived in Australia in 2005.

A partner at Australian commercial law firm Arnold Bloch Leibler, he leads the Sydney taxation practice.

Advising across most taxes, Clint has particular expertise in corporate and international tax, the taxation of financial instruments and transactions, and the management of tax audits and disputes with the ATO.

His clients have included both public and private organisations, start-ups and venture capital, high net worth individuals, and some of Australia’s largest family groups.

Author of numerous tax articles, and a regular presenter, he is a member of The Tax Institute’s Large Business and International Committee.

Clint was the winner of the 2018 The Tax Institute’s Tax Adviser of the Year Awards for “Corporate Adviser of the Year”. He is also recognised as a leading tax lawyer by a number of independent legal guides, including Chambers Asia Pacific, Legal 500 Asia Pacific and Doyles Guide.

Find out more about his session, and the rest of the NSW 12th Annual Tax Forum program on our website. Join us 23-24 May 2019, at the Sofitel Sydney Wentworth.


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