Private ruling: Residency
Date of advice: 11 July 2016
Published: August 2016
Ruling period: Year ended 30 June 2017 | Year ended 30 June 2018 | Year ended 30 June 2019
Date scheme commenced: 1 July 2016

Ruling: Questions and answers | 1. Is Company A, a resident of Australia for tax purposes? | No. | 2. Is Company A, a prescribed dual resident? | No

Relevant facts and circumstances: Company A is a wholly owned subsidiary of Company B (an Australian incorporated company) which is wholly owned by the Trust. The trustee of the Trust is Company B which is an Australian incorporated company. Two individuals are the sole directors of Company B and Company C. Company A was incorporated overseas. At the time of incorporation, the directors of Company A were all foreign residents and included the two individuals (former Australian residents) who were not Australian tax residents at the time. The two individuals have been the sole directors of Company A since the foreign directors resigned. The two individuals returned to Australia to reside. Company A is an investment holding company with its major asset being a majority interest in a foreign resident company that carries on business in foreign countries. Company A derives dividend revenue from its shareholding. Company A has not, and does not, derive income from Australian sources or conduct any business activities in Australia.

Relevant legislative provisions: Income Tax Assessment Act 1936 Subsection 6(1) Anti-avoidance rules | The application of Part IVA of the ITAA 1936 has not been considered as this topic is in the MEI low risk PART IVA list as specified in ORCLA.

Reasons for decision: Summary: Subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) states that a company is a resident of Australia for taxation purposes if: • it is incorporated in Australia, or • although not incorporated in Australia, it 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. In this case, Company A was incorporated in a foreign country and its central management and control moved to Australia. However, regardless of Company A's central management and control moving to Australia or the residency of its shareholders being in Australia, it can only be a resident of Australia if it carries on business in Australia. From the information provided, Company A has not, and does not, derive income from Australian sources or conduct any business activities in Australia. Therefore, Company A has not carried on business in Australia and accordingly is not a resident of Australia for income tax purposes. As Company A is not a resident of Australia within the meaning of subsection 6(1) of the ITAA 1936, Company A is not a prescribed dual resident.