Corporate Residency – Central v. Effective Management

Abstract

Residency of foreign companies has never been under so much scrutiny and review in Australia until the release of the report by the Board of Taxation in 2019. The recommendations made by the Board have not been acted upon up to now, but will be a subject of much debate and conflicting opinion in the near future, especially because of the pandemic restricting travel of senior officers of companies and the changed company practices. The consequences that follow if a company is considered as resident in Australia are numerous and therefore the criteria for residence will form a significant consideration when determining the appropriate structuring of foreign incorporated companies wishing to do business in Australia. The statutory provisions relating to corporate residency have been in ITAA 1936 for quite some time and all interested parties are in agreement that the law relating to residence of foreign incorporated companies requires review to suit the current and fast evolving environment of corporate mobility and management, especially in light of the role played by online business practices, such as project management and key personnel participation in business.