In the 2020 Federal Budget, the government announced that it intended to make technical amendments to clarify the corporate residency test. While the government has not provided further details, the Board of Taxation has recently released its review of corporate tax residency, the details of which appear to be consistent with the government’s intentions. This report contains more information on various aspect of the government’s announcement including the concept of sufficient economic connection.
Under the current rules, a company will be an Australian tax resident if:
However, in Bywater Investments Ltd & Ors v FCT; Hua Wang Bank Berhad v FCT  HCA 45, the High Court decided that having boards of directors of various companies located in overseas countries were insufficient to make the companies “foreign residents”. This overturned much of the accepted understanding of corporate residency of a foreign incorporated company and caused confusion and red tape for many in the business community.
In its review, the Board indicated that a majority of submissions supported its proposal to modify the “central management and control test” to ensure that a foreign incorporated company will only be an Australian tax resident if it has sufficient economic connection with Australia.
According to the report, “sufficient economic connection” could be determined using a two-step process. Firstly, to determine whether core commercial activities of a foreign incorporated company are undertaken in Australia. Only if the answer if affirmative, does it move to step 2 which involves looking at the central management and control of the foreign incorporated company.
Factors considered by the Board to be relevant when assessing whether the core commercial activities of a foreign incorporate company include:
In the Budget, the government announced the measure will have effect from the first income year after the date of the enabling legislation receives assent, but taxpayers will have the option of applying the new law from 15 March 2017.