海外公司避税问题

maniwood

公司想在斯里兰卡开一个公司，因为当地根据的法规，按投资规模可以享受4-10年的免税。昨天咨询了一下CA，说这个要看斯里兰卡这个公司收入的来源，如果超过5%的income来自澳洲，那就要付30%澳洲的公司税了。我对于这个比例很怀疑。有没有高手比较明了的阿？

JohnnySu

There are specialist companies that setup overseas companies for Australian businesses. They can handle everything from legal compliance to setting up virtual offices.

Poweregg

搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗？不能抽的话，很容易避税啊

maniwood

Poweregg 发表于 2012-10-25 11:30
搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗 ...

要交税的。每个国家对于这个rate不一样。澳洲不知道要收多少。

JohnnySu

Poweregg 发表于 2012-10-25 10:30
搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗 ...

Depending on the category of payments there are Withholding Tax, company tax, and transfer pricing rules. Whichever way the income would be taxed before it goes overseas.:)

LENNY_DONG

ATO HAS FOREIGN CONTROL TEST

http://www.ato.gov.au/taxprofess ... 473.htm&page=54

maniwood

STS-TAX 发表于 2012-10-25 14:25
ATO HAS FOREIGN CONTROL TEST

http://www.ato.gov.au/taxprofessionals/content.aspx?menuid=0&doc=/cont ...

谢谢，我看完先。哈哈比较慢。

3IX37

Poweregg 发表于 2012-10-25 10:30
搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗 ...

This is a too advanced topic to discuss within a few words.

Mainly the intra-group transactions will trigger trasfer pricing rules, the rationale behind this is all transactions must be dealt in an arm's length manner. Otherwise the Commissioner has the ultimate power to determine the consideration.

You should refer to Division 13 ITAA 1936 for transaction with a non-treaty country, and the new Subdivision 815-A ITAA1997 for transactions with a treaty country.

AU has very few cases in relation to this matter, the most recent one is the SNF case which, rumor has it, it is the reason of the new subdivision 815-A.

For anyone is interested in this topic, i am happy to discuss it off line, as i am currently doing some researches regarding to this lately most talked topic. :)

3IX37

I believe it is treated as a controlled foreign company (CFC), under the de minims exception, attributable income must be less than $ lower of AUD $50,000 or 5% of gross turnover.

addtional care needs to be taken that the above exception rule applies to CFC in listed countries (as far as i remember). whether Sri Lanka is a listed country or not, it is up to you to find out :)

At this stage It seems to be right to me without furthering analysis.

kikichou

看看 学习下！

maniwood

3IX37 发表于 2012-10-25 15:28
I believe it is treated as a controlled foreign company (CFC), under the de minims exception, attrib ...

where I can find the info in ATO? do you have any link I can have a look? As my understanding, our Sir Lanka company is operating independently with three directors (two local directors and one OZ director) on board now. It has its own bank account and their own operation office and doing seperate business as OZ company branch does. I believe Sir Lanka has the tax treaty with OZ, however, that link is gray and cannot be opened in ATO website. Do you mind discuss with me regarding these issues? Thanking you in advance...

3IX37

Poweregg 发表于 2012-10-25 10:30
搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗 ...

haha, I just noticed that you mentioned Google.

This is a very good case, which currently under ATO investigation. I remember I read on the news, that Google as a multinational company, one of Fortune 500, only paid $70,000 Au tax in 2011.

They are using a group structure plan, nick name as "Irish sandwich", through which they avoid to have a permanent establish in Au, therefore all Au sourced income is taxed overseas. This is a very complicated corporate structure planning, so far very effective. Even Apple, Amazon and other big international corps are all using or partly using  this strategy too.

You probably would notice that if you order something online from Apple, the invoice is not from AU, instead it is from some other country.

JohnnySu

STS-TAX 发表于 2012-10-25 13:25
ATO HAS FOREIGN CONTROL TEST

http://www.ato.gov.au/taxprofess ... uid=0&doc=/cont ...

This test is to test income flowing into Australian entities not income flowing overseas.

3IX37

maniwood 发表于 2012-10-25 14:48
where I can find the info in ATO? do you have any link I can have a look? As my understanding, our ...

Any more information than i provided above, i have to charge you for it :) I am just joking. But..

Seriously, i am currently working on something else. and you sound like a person like doing your own researches.

here are the links you might find handy

http://www.ato.gov.au/taxprofessionals/content.aspx?doc=/content/64063.htm
http://www.jws.com.au/__files/f/2019/Controlled%20Foreign%20Companies.pdf
http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1936240/s340.html

the relevant legislation you should refer to are (mainly in ITAA1936)
s.456
s.331, s.332, s. 332A, s. 333
s.349 to s.355
mainly Part X and Part XI

JohnnySu

3IX37 发表于 2012-10-25 14:28
I believe it is treated as a controlled foreign company (CFC), under the de minims exception, attrib ...

CFC, FIF etc these rules test income flowing into Australia not income flowing out. You are looking in the wrong direction.

3IX37

3IX37 发表于 2012-10-25 14:58
haha, I just noticed that you mentioned Google.

This is a very good case, which currently under  ...

quote:
http://delimiter.com.au/2012/06/21/transfer-pricing-rules-wont-affect-google-tax/
http://www.charteredaccountants.com.au/News-Media/Charter/Charter-articles/Business-management/2012-09-Are-Borders-Meaningless.aspx

3IX37

I am always amazed by how fast some people can response on this forum. Sometimes i wonder whether they work full time online in this forum.

OK, since i am taking this arvo off from work. Let me elucidate this further.

Yes, it is correct that the CFC rule can be seemed as an in-flow integrity mechanism, under which a foreign subsidiary, if is a controlled foreign company, even it is a resident in other juristiction (Non-Au resident) and the income is foreign sourced, they are still liable to Au tax. Again, this is an over simplified explanation. for some picky readers, i m sure you can refer more info from legistions.

and you absolutely right that i don't know all.

Cheers.

maniwood

3IX37 发表于 2012-10-25 16:52
I am always amazed by how fast some people can response on this forum. Sometimes i wonder whether th ...

但是我觉得你是对的啊，进和出只是相对的一个概念。就像我们公司现在的这个情况，虽然是公司想把钱转出去，然后可以在斯里兰卡免税，但是从斯里兰卡这方面讲，就算转出去了，也是要交AU的税。 因为有CFC的问题存在。 我是自己觉得原本这个计划就是行不通的。我有一点不明白的是如果有tax treaty, 是不是意味着所有公司就算在斯里兰卡有自己的branch并且独立运营，就算当地免了税（tax free period) 澳洲政府还是要税呢？这个CFC不是和tax treaty冲突了吗？

LENNY_DONG

taxbreak 发表于 2012-10-25 15:06
This test is to test income flowing into Australian entities not income flowing overseas.

Controlled foreign company
A controlled foreign company is a non-resident company controlled by an Australian entity. Under section 340 of the ITAA 1936 a foreign company is controlled by an Australian entity if one of the three control tests is satisfied:

strict control test
assumed controller test
de facto control test.
Strict control test

A foreign company will be treated as a controlled foreign company under the strict control test if a group of five or fewer Australian '1% entities', together with their associates, owns or is entitled to acquire a control interest of at least 50% in the foreign company.

An Australian 1% entity is an Australian entity that, together with its associates, holds an interest of at least 1% in the foreign company.

An Australian entity is an Australian partnership, an Australian trust, or an entity - other than a partnership or trust - that is a Part X Australian resident. A Part X Australian resident is a resident of Australia who is not treated solely as a resident of another country under a double taxation agreement between Australia and that country.

The associate-inclusive control interest of an entity is the sum of interests held by the entity and its associates in the foreign company. Interests that the entity and its associates are entitled to acquire are also taken into account.

Example of strict control test

Assumed controller test

A foreign company is normally treated as a controlled foreign company under the assumed controller test if a single Australian entity owns, or is entitled to acquire, an associate-inclusive control interest of at least 40%. An entity's associate-inclusive control interest in a foreign company is the sum of the interests held in the company by the entity and the associates of the entity. However, a foreign company is not treated as a controlled foreign company under the assumed controller test if the company is controlled by a party or parties unrelated to the single resident or its associates.

Example of assumed control test

De facto control test

A foreign company will be treated as a controlled foreign company under the de facto control test if a group of five or fewer Australian entities, either alone or with associates, effectively controls the foreign company.

Example of de facto control test

If an Australian entity can control the appointment of directors to a foreign company, the Australian entity will generally be taken to have de facto control of that company.

When is control measured?

The statutory accounting period of a controlled foreign company is a period of 12 months ending 30 June, unless the company elects to use another period. The control test is applied at the end of a company's statutory accounting period to check whether income of that company is to be attributed.

It may also be necessary to measure control when a controlled foreign company pays a dividend to another controlled foreign company or to a controlled foreign trust, or when a controlled foreign company changes residence.

JohnnySu

STS-TAX 发表于 2012-10-25 16:23
Controlled foreign company
A controlled foreign company is a non-resident company controlled by an ...

粘贴这么多大家也看不完
简单来说 这CFC是针对澳洲企业在海外的子公司 如果符合某些条件 其收入就要算在澳洲母公司的头上缴澳洲的税 这跟澳洲公司往海外输出利润避税是两码事的

LENNY_DONG

taxbreak 发表于 2012-10-25 20:22
粘贴这么多大家也看不完
简单来说 这CFC是针对澳洲企业在海外的子公司 如果符合某些条件 其收入就要算在 ...

那楼主问的东西不就是澳洲企业的海外子公司么

或许我中文理解不太好

maniwood

taxbreak 发表于 2012-10-25 21:22
粘贴这么多大家也看不完
简单来说 这CFC是针对澳洲企业在海外的子公司 如果符合某些条件 其收入就要算在 ...

公司的初衷是建立一个和公司一点关系都没有的公司在海外，用来避税。最后演变成一定要有一个澳洲的holding company，因为海外投资人家要看你公司的以前的帐。没有这个海外也不会让你随便成立公司。但是就是因为这个原因，最后就变成海外的公司成了子公司。很无奈啊。而且现在也搞不清楚到底Sir Lanka是不是和AU有tax treaty,这个tax treaty 和CFC有没有冲突。谢谢各位。

JohnnySu

maniwood 发表于 2012-10-26 10:07
公司的初衷是建立一个和公司一点关系都没有的公司在海外，用来避税。最后演变成一定要有一个澳洲的holdin ...

Hi my discussions were more focused on the Google case

In relation to your business. I can give you a contact. You can ring and ask for Eric Allan.
http://www.cmsaus.com.au/
They are specialist in setting up companies in tax heaven jurisdictions.
You can possibly set up a company in Belize or Hk where the company tax rates are close to 0.Talk to these people anyways they do these everyday.

LENNY_DONG

maniwood 发表于 2012-10-26 10:07
公司的初衷是建立一个和公司一点关系都没有的公司在海外，用来避税。最后演变成一定要有一个澳洲的holdin ...

ASK BIG 4......

THEY HAVE SPECIALIST TO DEAL WITH THESE ISSUE

lee2267

STS-TAX 发表于 2012-10-26 17:13
ASK BIG 4......

THEY HAVE SPECIALIST TO DEAL WITH THESE ISSUE

在我印象中 安永在 transferrting price 这 块是 4大最 强的。。

LENNY_DONG

lee2267 发表于 2012-10-26 19:53
在我印象中 安永在 transferrting price 这 块是 4大最 强的。。

反正他们帮全球企业钻空子地方多了去了

BHP好像在一个破岛开个分公司，丰田也是

3IX37

Poweregg 发表于 2012-10-25 10:30
搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗 ...

This is totally not related to the original LZ's post.

In relation to your question regarding how google managed to pay only $74,000 tax on claimed local revenue of $1 billion . the following is the brief detail for the so-called "Double Irish Dutch Sandwich" structure and background.

Background Knowledge:
Under tax treaty, when a foreign company, who is a resident of a treaty country, has a business profit in Australia, but has no permanent establishment (PE) in here, only the original resident country of the company has the taxing right for the profit.
PE is a defined term in Article 5.

How Google did it:

1) Google has no permanent establishment (a fixed place of business) in Australia. If u purchase an advertisement, you would get an invoice from Ireland.  The advertising business is undertaken by an Irish company 1, who is the resident of Ireland.

2) Irish company 2, has business headquarter and business operation in Bahamas and holding/owning the title of its intellectual properties.

3) An Dutch associate is in Netherlands.

Irish 1 pays royalty to Irish 2 for the intellectual property it uses for its advertising business operation. this shifts the profit from Ireland to Bahamas, where the tax heaven is.

There usually would be a royalty withholding tax levied on this type transactions. This is why the Dutch associate coming to play. as there is no such withholding requirement for transaction between Ireland and Netherlands. Consequently, the majority of the profit has effectively been shifted from Australia to Bahamas.

One more background knowledge.
As Google is a US company, under US tax law Subpart F, a US company's overseas income does not need to be taxed until the time when the profit is repatriated back in US. That is why there is billions and billions "Stateless Money" shifting around world.

The controversy issue:
With the new technology is so advanced, a business does not need a strict fixed place for its business operation as it used to be. As the result, whether the definition of PE needs to be updated or whether the PE rule is still correctly serving its original legislative purpose. there are a lot of debates.

  

3IX37

maniwood 发表于 2012-10-26 10:07
公司的初衷是建立一个和公司一点关系都没有的公司在海外，用来避税。最后演变成一定要有一个澳洲的holdin ...

Sri Lanka is a treaty country. it however is not a listed country, instead it is one of section 404 countries. (if my memory serves me correctly)

One of the main purposes of tax treaty is to eliminate the juridical double taxation, under which a same taxpayer is taxed twice on the same income at the same time by 2 different tax jurisdictions.

As it was explained earlier in Google case, in most countries under treaty a foreign company is not taxed on its foreign sourced income without a permanent establishment, only the origin resident country has the taxing power. This means on the other hand if an australian resident uses a foreign company to derive business or investment income from a foreign source, AU would lose its taxing power and this income would generally escape from Au tax until it is distributed back to the Au resident controller.

However, unlike most other countries, Au additionally has its attribution regime, Part X - CFC rules, to prevent this, by attributing the income of the controlled foreign entity to the AU controller rather than waiting for it being repatriated back in Au.

This attribution regime has a limited operation in 2 respects
1) it generally does not apply where the foreign company derives a genuine active business operation income
2) it normally does not apply where the foreign income is subject to foreign income tax in a listed country where a comparable tax rate is levied.

The central operative provision for the CFC rules is s.456 of ITAA1936. The "attributable income", "attributable taxpayer" and "attribution percentage" are all defined terms in Part X, you can find the detailed definition there.

I hope this explained your question.

maniwood

3IX37 发表于 2012-11-4 11:56
Sri Lanka is a treaty country. it however is not a listed country, instead it is one of section 40 ...

谢谢，强人阿(paopaobing(88))

3IX37

Poweregg 发表于 2012-10-25 10:30
搭车好奇问问
google或者holden/toyota每年都要给母公司 授权使用费
这部分转出澳洲的钱，澳洲政府能抽水吗 ...

Hi there

Just in case that you have not yet read this news. It is related to this regard in the news on The Age today.

http://www.theage.com.au/busines ... 20121122-29rxl.html

Cheers