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Assume that you are Australian resident for tax purposes and you are now considering setting up a trust and working for your current overseas employer on a contract basis, rather than as an employee.
GST
If your employer is a non-resident company based overseas, and does not carry on a business of its own in Australia, then the supply of your services to the non-resident is GST-free. Accordingly, you (or your trust) are not required to register for GST.
PSI
It really comes down to whether you (or your trust) are deriving the income from your personal services. If you (or your trust) derive income mainly from your personal efforts and skills then it is very likely that the income would be classified as ‘personal services income’ (PSI) in the hands of the trust. One exception to this is where you can argue that the income is earned from a business structure rather than your personal skills and efforts.
On the other hand, if the income of the trust is derived from your personal services then the next step is to confirm whether any of the personal services business (PSB) tests are passed. In this case it may be possible for the trust to pass a number of tests including the results test, unrelated clients test or business premises test. It would ultimately depend on the facts.
If the trust passes any of the PSB tests then the PSI attribution rules would not apply and the trust should have some additional flexibility in terms of claiming deductions. For example, it should be possible to claim a deduction for reasonable amounts paid to your spouse or relatives for administrative work.
However, note that even if the trust is carrying on a PSB, the ATO has strict expectations when it comes to distributing profits that result from the personal services of an individual. The ATO has indicated that it may seek to apply Part IVA if a trust that derives income from the personal services of an individual splits that income with other entities (eg, family members or related entities). However, as long as any remaining profit in the trust is distributed to you at the end of each year then it is very unlikely the ATO would seek to apply Part IVA.
If the trust does not pass any of the PSB tests then the PSI attribution rules would apply to tax you on the net PSI derived each year (less salary and wages paid promptly). Also, it would not generally be possible to deduct wages paid to an associate for non-principal work.
Tax Rates
Normally, any of the income the trust earns is distributed to its beneficiaries by the trustee of the trust before the end of each year therefore the trust is not liable to pay income tax (unless the income/capital is distributed to either non-residents or minors, or accumulates net trust income, then trustee will be assessed).
The beneficiaries must declare that share of net trust income on their individual income tax returns and pay tax on their marginal rate.
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