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When is a company incorporated outside Australia a resident of Australia?


Whether or not it is correct that the concepts of source and residence are losing their significance, residence for tax purposes is still an important question under Australian tax law, and one with significant consequences. This article focuses on the residence of corporations for Australian tax purposes. The traditional authorities on corporate residence, as well as the tax treaty position, are reviewed. The implications of the recent decision in Hua Wang Bank Berhad v FCT (currently under appeal) are discussed.

The article concludes with observations about the future of corporate residence principles. Internationally, the trends are towards transfer pricing-based source rules, territorial tax systems, and the lowering or abolition of permanent establishment thresholds. The author predicts that corporate residence will become less significant over time and concludes that this is consistent with the corporate tax’s character as a source tax.

Author profile

Chloe Burnett ATI
Chloe Burnett is a Barrister at the New South Wales Bar, specialising in tax controversy. She has appeared in a number of high profile tax cases including Chevron, the Part IVA cases News Australia Holdings, British American Tobacco and Citigroup and the buy-back cases Consolidated Media and Cable & Wireless. She is currently advising in relation to a number of BEPS audits. Chloe has been an Adjunct Lecturer at the Sydney University Law School since 2006. - Current at 04 November 2016
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